[1980] OLRB Rep. May 805
0936-79-R Local 663 of the Service Employees International Union A.F. of L., C.I.O., C.L.C., Applicant, v. Trenton Memorial Hospital, Respondent, v. Group of Employees, Objectors.
BEFORE: M. G. Picher, Vice-Chairman, and Board Members J. D. Bell and W. F. Rutherford.
APPEARANCES: G. Charney, Q. C., Jack Nichols and S. Shrybman for the applicant; Brian W. Burkett, J. Luptin, M. Noel and R. A. Adams for the respondent; Grace Ingle, Christine Scott and Della M. Dafoe for the objectors.
DECISION OF THE BOARD; May 9, 1980
This is an application for certification in respect of a bargaining unit of office and clerical employees in the respondent's hospital at Trenton. By a decision dated January 24, 1980, the Board ordered a representation vote among the employees in the bargaining unit. The bargaining unit excludes, among others, "persons regularly employed for not more than 24 hours per week".
In ordering the representation vote the Board made its normal statement respecting voter eligibility:
"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 cause between the date hereof and the date the vote is taken will be eligible to vote."
The vote was taken on February 21, 1980. The unusual aspect of this case is that over six months elapsed between the time that the application for certification was filed on August 18, 1979 and the date the representation vote was finally taken. While the application was initially heard on September 11, 1979, disagreement between the parties as to the composition of the bargaining unit required the appointment of an examiner with the inevitable delay of further hearings to resolve that issue.
By the time the examiner's report came on for hearing before the Board there were three issues outstanding:
The method which the Board should use to designate full-time and part-time employees as at the date of application.
Whether one employee was a technologist or a clerical employee.
Whether two employees with bookkeeping responsibilities exercised managerial and confidential authority so as to be excluded from the bargaining unit.
Those issues were disposed of by the Board's decision of January 24, 1980. (Trenton Memorial Hospital [1980] OLRB Rep. Jan. 116). Among other things the Board concluded that the "seven week rule" should be applied to determine which employees were full-time and which employees were part-time for the purposes of determining the list of employees in the bargaining unit on the date of the application. In other words, any person who worked for more than twenty-four hours per week during four or more of the seven weeks immediately preceding the application date was found to be a full-time employee falling within the bargaining unit on that date. (Sydenham District Hospital, [1967] OLRB Rep. May. 135). That is the procedure by which the Board generally determines the number of employees in the bargaining unit in respect of which the membership evidence of a union is assessed, to see whether the union is entitled to outright certification, to a representation vote or whether the application should be dismissed (R. v. OLRB ex p. Hannigan 1967 CanLII 205 (ON CA), [1967] 2 OR. 469 (C.A.)).
When the vote was taken on February 29, 1980 ballots were cast by all 33 employees whose names appeared on a previously prepared voter's list. The voter's list was signed by representatives of the hospital, the union and the group of employees objecting to the application. Received by the Board on February 6, 1980, the list indicated that four employees, N. Baidree, M. Lloyd, J. Thompson and J. Morin were challenged as being ineligible to vote. The union took the position that Baldree, Lloyd and Thompson were part-time employees either on the date that the vote was ordered or the date that the vote was taken and were therefore not entitled to vote. The employer took the position that Morin was a part-time employee on the date of application within the meaning of the Board's decision of January 24, 1980 and that she was therefore not entitled to vote. The ballots of these four employees were therefore segregated when the vote was taken. Of the remaining ballots cast IS were marked in favour of the union and 14 against. The Board's ruling on the eligibility to vote of the 4 challenged employees could, therefore, determine the outcome of this application.
The issue is the standard to be applied to determine whether an employee is full-time or part-time for the purposes of voter eligibility. Counsel for the union submits that to determine whether an employee is a full-time employee with eligibility to vote the Board must apply a twofold test, asking itself first whether the employee was in the bargaining unit on the day that the vote was ordered and, secondly, whether he was in the unit on the day the vote was taken. He submits that the seven week rule must be applied at each of those dates, and if on each of those days the employee could be described as "regularly employed for not more than 24 hours per week" he or she is eligible to vote.
Counsel for the respondent submits that when the Board, in its decision of January 24, 1980, determined that the seven week rule should be applied for the purposes of separating full-time from part-time employees, it in effect applied that rule once and for all. In other words, he submits that an employee who is determined to be a full-time employee on the day of application is entitled to vote, and that that person's status is not to be reassessed either as at the date that a representation vote is ordered or the date the vote is taken.
Normally, a representation vote can be held fairly quickly after the date that an application for certification is received by the Board. In that situation applying the seven week rule on the date of application to determine the list of employees for the purposes of assessing membership strength may well produce substantially the same list as would result if the same test is applied on the dates that the vote is ordered and taken. But that becomes less true as time passes between the date of application and the date that a vote is taken. Where, as in this case, there is a lapse of six months between the application date and the date of the vote, the likelihood of turnover among the employees in the bargaining unit increases. That is why the eligibility of an employee to vote is based not on his status on the application date, but rather, on his status both on the date that the vote is ordered and the date that the vote is taken. Part of the reason for the two-pronged rule is to ensure, insofar as possible, that the vote will reflect the wishes of the employees with the most direct interest in its outcome — namely the employees who are in the bargaining unit at the time that the vote is taken. (I. McLeod & Sons Ltd., [1970] OLRB Rep. Feb. 1316; London District Crippled Children Treatment Centre, Board File No. 1780-79-R, April 28, 1980, as yet unreported). Persons who have become strangers to the bargaining unit by the time the vote is taken do not have a right to vote, notwithstanding that they may have been in the bargaining unit on the date that the application for certification was filed.
In this case the employees eligible to vote, by the very terms of the Board's Order, are those who were regularly employed for not more than 24 hours per week on January 24, 1980 (the date that the vote was ordered) who were also regularly employed for not more than 24 hours per week on February 21, 1980 (the date that the vote was taken). The question then becomes how on each of those two dates an employee can be described as regularly employed for not more than 24 hours. That can't be done by looking to their status on the date of application. Nor can it be done by looking only at the two weeks in which those days fall. The term "regularly" implies an examination of an employee's hours of work over a more extended period of weeks. The test that the Board has devised for that determination is the seven week rule. It has been successfully applied to determine bargaining unit membership on the date of application. There is no reason why it can't apply with equal validity where a dispute arises with respect to the eligibility of an employee to vote.
For the foregoing reasons the returning officer is instructed to inquire and report back to the Board on the status of the four challenged employees as of January 24, 1980 and February 21, 1980. He shall apply the seven week rule to each of them on each of those dates. Their votes are to be counted if by the application of that standard they fall within the bargaining unit on both dates.
Two employees appeared at the hearing to protest the conduct of the representation vote. They objected to the fact that the poll was temporarily closed while the Board's Returning Officer left the polling room, taking the ballot box with him, in order to call the Board for procedural instructions.
The Board is the agency designated by the Legislature to administer and supervise the certification of trade unions by the taking of representation votes. The Board's Returning Officers are the persons specifically charged with the conduct of a vote between the two or more parties to a certification. Unfortunately the opposing parties to a vote can, on occasion, display a very real measure of antagonism and mutual suspicion. In those sometimes volatile circumstances caution is to be preferred to the risks of an honour system.
For these reasons it is the Board's standing instruction to its Returning Officers that at all times during the course of a representation vote the ballot box remain continually in their presence and custody. Returning Officers are not privy to all of the issues between the parties, and to the extent that disputes can arise during the course of balloting it is inevitable that a Returning Officer will occasionally be obliged to suspend the balloting for the time that it takes to obtain instructions from the Board. The fact that the Officer took the ballot box with him in just such a circumstance is, therefore, entirely proper and is no basis to vitiate the balloting. While the complaining employees may have been inconvenienced by having to wait for their opportunity to vote, there is no suggestion that either they or any other employees were denied a fair and sufficient opportunity to cast their ballots.
The application shall be remitted to the Registrar.