Ontario Nurses' Association v. The Regional Municipality of Durham
[1980] OLRB Rep. January 90
1270-79-R Ontario Nurses' Association, Applicant, v. The Regional Municipality of Durham, Respondent, v. Group of Employees, Objectors.
BEFORE: Rory F. Egan, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.
APPEARANCES: Dan Anderson for the applicant; E. T. McDermott for the respondent; no one for the objectors.
DECISION OF THE BOARD; January 16, 1980.
This is an application for certification in which the Board directed the holding of a representation vote. A dispute arose as to the eligibility to vote of Lily English, Mrs. M. Ruttan and Mrs. M. Orchard. The three persons had cast ballots at the representation vote. It was directed that their ballots be segregated and not counted pending the decision of the Board as to the eligibility of each of them to vote. The Board heard evidence and the representations of the parties on the matters in dispute.
The Board was advised at the hearing that the parties had agreed that Mrs. Ruttan was eligible to vote and the Board so rules.
The evidence is that Mrs. Orchard is a registered nurse but had been employed in the capacity of nursing attendant in a bargaining unit represented by Canadian Union of Public Employees at the time when Mrs. Ruttan went on pregnancy leave. When Mrs. Ruttan left, Mrs. Orchard was promoted to the position of registered nurse to replace Mrs. Ruttan. The pro motion was to have been for the duration of Mrs. Ruttan's absence but it carried on beyond that due to the illness of other RNs. Her duties as an RN commenced in March 1979. The Board is satisfied on the evidence that it was clearly understood that Mrs. Orchard was to return to the other bargaining unit.
The application for certification was made on October 1, 1979. The bargaining unit sought comprised all registered and graduate nurses employed by the respondent in a nursing capacity with certain exceptions not here relevant.
At the date of the application for certification Mrs. Orchard was working as a registered nurse as a temporary substitute for Mrs. Ruttan as we have already indicated.
The Board directed the holding of a representation vote in a decision dated October 25, 1979. The decision stated that "all employees of the respondent in the bargaining unit on the date hereof who do not voluntarily terminate their employment or who are not discharged for caused between the date hereof and the date the vote is taken will be eligible to vote".
Mrs. Orchard was in the bargaining unit sought by the applicant at the date that the vote was ordered. On the date that the vote was held, however, she had returned to the other bargaining unit.
The applicant union takes the position that since Mrs. Orchard had not voluntarily terminated her employment and had not been discharged for cause but was still an employee of the respondent, albeit in another bargaining unit, on the date of the vote that she is an eligible voter.
The respondent's position is that Mrs. Orchard was not in the bargaining unit when the vote was held and therefore was ineligible to vote. In support of its position the respondent relies upon the decision of the Board in the Canadian Westinghouse Company Limited case , [1962] OLRB Rep. Sept. 372.
In the Westinghouse case, supra, the Board dealt with, among other matters, the case of a person who had been an employee in the bargaining unit on the date the vote was directed but who had been transferred out of the bargaining unit prior to the taking of the vote. In paragraph 6 of its decision the Board stated:
"The Board's standard direction for the taking of a representation vote, as quoted above, cites only two instances in which a person who was an employee in the bargaining unit on the date the vote was directed forfeits his eligibility to vote, namely, where he voluntarily terminates his employment or is discharged for cause before the date the vote is taken. The Board however, has not attempted in its standard direction to define exhaustively all of the contingencies under which a person who was an employee in the bargaining unit when the vote was directed would cease to be eligible to vote. The Board has consistently interpreted its direction to mean that a person who, between the date of the direction and the date of the vote, has ceased to be a member of the bargaining unit, is disqualified from participating in the vote, whether because of voluntary termination of employment, discharge for cause, indefinite lay-off in some circumstances, or transfer to a position out of the bargaining unit. Stated another way, the policy of the Board is that a person must be an employee in the bargaining unit both on the date the vote is directed and on the date of the taking of the vote in order to be eligible to cast a ballot."
We are of the opinion that the transfer of an employee out of one bargaining unit into another bargaining unit (as was the case with Mrs. Orchard) rather than into a managerial position does not provide grounds for varying the position of the Board as set out in the Westinghouse case and find that it is applicable in the present circumstances. In the result, therefore, we find that Mrs. Orchard was ineligible to vote.
We further find the submission that Mrs. Orchard's transfer back to the CUPE unit was in violation of section 70 of the Act is not supported by the evidence which clearly indicates a pre-arrangement for her return to the other unit.
The Board notes that the parties have agreed that Lily English, the third person in dispute, is a graduate nurse. It is the union's position that English is not an eligible voter. The respondent argues that she is an eligible voter.
English had been employed by the respondent for 19 years as a graduate nurse. She has been absent from work since March 14th or 15th, 1979 by reason of illness. She is unable to state when she will be able to resume working.
English stated that she had been informed by the respondent that her status was that of an employee on leave of absence by reason of illness and that no one had advised her that her employment had been terminated. The respondent's evidence is that no steps have been taken to terminate English's employment and that the respondent has continued to maintain fringe benefit for her. The respondent also stated that there was a job for English when she returns. She is recorded as an employee who is ill.
The respondent has continued to pay for English's OHIP, drug plan, eyeglasses, semi-private hospital care and extended life insurance. This is a