Service Employees International Union, Local 183 A. F. of L., C.I.O., C.L.C. v. Westgate Nursing Home Inc.

[1981] OLRB Rep. April 503

2699-80-R Service Employees International Union, Local 183 A. F. of L., C.I.O., C.L.C., Applicant, V. Westgate Nursing Home Inc., Respondent, v. Group of Employees, Objectors.

BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. Wilson and H. Kobryn

APPEARANCES: C. M. Mitchell, P. Marier and J. Nicholls for the applicant; K. W. Kort and R. Bond for the respondent; James O'Brien for the objectors.

DECISION OF THE BOARD; April 15, 1981

1. This is an application for certification.

2. The name: "Westgate Lodge Nursing Home" appearing in the style of cause of this application as the name of the respondent is amended to read: "Westgate Nursing Home Inc."

3. The Board finds that the applicant is a trade union within the meaning of section l(l)(n) of The Labour Relations Act.

4. Having regard to the agreement of the parties the Board further finds that all employees of the respondent in Belleville, Ontario, regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, save and except graduate and registered nurses, physiotherapists, occupational therapists, supervisors, persons above the rank of supervisor, and office staff, constitute a unit of employees of the respondent appropriate for collective bargaining.

5. This application for certification as bargaining agent for the part-time (and student) employees of the respondent was filed with the Board on March 9, 1981. In an earlier application filed with the Board on February 25, 1981, (File No. 2604-80-R), the applicant applied for certification as bargaining agent for the full-time employees of the respondent. The Form 1 Application for Certification filed in the present proceedings contains a request that the Board transfer from the full-time application any cards applicable to the part-time bargaining unit.

6. Part-time employees are employees who are regularly employed for not more than twenty-four hours per week. In determining whether an employee is regularly employed for not more than twenty-four hours per week, the Board generally looks to the period of seven weeks immediately prior to the date of the application as a representative period in which to assess the number of hours worked by employees. If during four or more of the seven weeks examined a person works for not more than twenty-four hours per week, the person will generally be found by the Board to be a part-time employee (see Trenton Memorial Hospital, [1980] OLRB Rep. Jan. 116; Ian Douglas Ltd. trading as Dryden Cleaners & Launderers, [1971] OLRB Rep. Mar. 135; and Sydenham District Hospital, [1967] OLRB Rep. May 135). Thus, in disputed cases, the Board generally assigns an officer to examine the records of the employer to determine how many hours each employee in question worked in each of the seven (weekly) pay periods immediately preceding the date of the application. The use of data concerning hours worked taken from the employer's (weekly) pay records expedites the process by minimizing the calculations necessary to obtain the necessary information (since all employers are required by section 11 of The Employment Standards Act, 1974 S.O. 1974, c. 112, as amended, to make complete and accurate records in respect of each employee showing information including the number of hours worked by the employee in each week). By adopting the seven week rule, the Board has sought to assist the parties appearing before it in reaching agreement on the status of employees as full-time or part-time, and to permit the parties to know in advance with a reasonable degree of certainty which employees will be affected by a particular certification application. The seven week period is a guideline, not a "hard and fast rule". Thus, if the seven week period is found to be "unrepresentative" of the nature of an employee's status (due to circumstances such as illness, accident or leave of absence), the Board may select another period of time that is more representative (see Holiday Inn Yorkdale - Commonwealth Holiday Inns of Canada, [1976] OLRB Rep. Nov. 709). However, as stated in Trenton Memorial Hospital, supra, at para. 7, "there is a substantial onus on any party requesting that the Board depart from procedures like the seven week guideline that ~re known, accepted and relied on by union and employers alike".

7. The application of the seven week rule to this application has resulted in two employees being included on Schedule B of the list filed in this application (i.e. the schedule listing all employees regularly employed for not more than twenty-four hours per week) who are also included on Schedule A in the list filed in the earlier (full-time) application (i.e. the schedule listing all employees regularly employed for more than twenty-four hours per week who were actually at work on the day of the application). Thus, the two employees in question were full-time employees as of February 25, 1981, but had become part-time employees by March 9, 1981.

8. Counsel for the respondent submitted that the employees in question, and any membership card or cards pertaining to them, should be counted in only one application, since it would "smack of unfairness" for a membership card, or a person who had not signed a membership card, to be counted twice. He further submitted that their inclusion in one of the two applications should be determined on a chronological basis. Accordingly, it was his position that the employees in question, and any membership card or cards pertaining to them, should be included for purposes of the count only in File No. 2604-80-R (the full-time application) since that application was filed prior to the instant (part-time) application. Counsel for the objectors also submitted that the persons in question, and any membership evidence pertaining to them, should be considered only in relation to one application, not both. In support of his position, he contended that a membership card could not be in two files simultaneously. Thus, he argued that a membership card can only be applied to one to the two applications pending before the Board.

9. Counsel for the applicant submitted that the employees in question, and any membership card or cards pertaining to them, should be included in both applications for purposes of the count. He noted that such an approach is essentially neutral in that it could benefit the applicant in some cases (where both employees had signed cards), benefit neither party in other cases (where only one of the two employees had signed a card), or benefit the respondent in still other cases (where neither employee had signed a card). Thus, he contended that there was no reason for the Board to depart from its normal approach in either application.

10. Having regard to the submissions of the parties, the Board is of the view that there is no need to depart from the normal application of its seven week rule in the circumstances of this case. The fact that the application of the rule will result in some persons being found to be part-time employees for the purposes of this application who are full-time employees for the purposes of the earlier application merely reflects the fact that a "person may move from a full-time bargaining unit to a part-time bargaining unit depending on what period of time is considered" (see Sydenham District Hospital, supra, at paragraph 6). The application of this approach causes no injustice since the two persons in question will be included in the denominator of the respective fractions used to determine the respective membership percentages in the full-time and part-time applications, regardless of whether both, either, or neither of them signed membership cards in the applicant. Moreover, (subject to the unfair labour practice provisions of the Act, The Employment Standards Act, 1974, and any contractual limitations) an employer is free to determine the number of hours which an employee will be assigned to work in any particular week. Thus, it is the employer's assignment of working hours to a particular employee which ultimately results in the classification of that employee as full-time or part-time for the purposes of a particular certification application.

11. The Board has an established practice of transferring membership evidence to a certification application from a previous application for certification at the request of the applicant, provided the request is made on or before the terminal date of the (subsequent) application (see Precision Automotive Co. Limited, [1967] OLRB Rep. Nov. 741; Joffte Lapointe & Sons Limited, [1971] OLRB Rep. Sept. 621, 626 and 629; AP. Woodworking Shop, [1967] OLRB Rep. May 153; and Falcon bridge Nickel Mines, [1966] OLRB Rep. July 258 and 259). Although such transfer is generally made in a situation in which the prior application has been disposed of, there is nothing to preclude such transfer at a time when both files are pending before the Board. The transfer does not result in the cards becoming inapplicable to the previous file; rather it results in the cards being applied to each file in succession. Accordingly, in the present case all applicable cards will be applied first to the full-time application and then to the part-time application. To do otherwise could result in a substantial injustice to the applicant since it could result in the transferred cards being applied to only one of the two files despite the fact that the names of some of the persons who signed cards might be included in the employer's respective lists in both files for purposes of the count.

12. An applicant who requests the Board to transfer membership evidence from one certification application to another must file with the Board in the latter application a Form 8 Declaration concerning the transferred membership documents (see Joffte Lapointe & Sons Limited, supra, and A.P. Woodworking Shop, supra.). Although the applicant in the present case filed a Form 8 Declaration in respect of the two new membership cards submitted with this application, no Form 8 Declaration has been filed in this application in respect of the seven membership cards transferred from File No. 2604-80-R. Although Rule 6 requires such declaration to be filed not later than the second day after the terminal date for the application, Rule 57(2) empowers the Board to enlarge the time prescribed for filing such declaration. Generally the Board will excuse late filing of such declaration by permitting it to be filed at the hearing. See, for example, The Intelligencer, [1976] OLRB Rep. Mar. 120, in which the Board stated (at paragraph 11):

.... .The Board has the authority under Rule 57(2) to enlarge the time prescribed by section 6 of the Board's Rules of Procedure to permit the late fi¹.ing of a Form 8 and has done so on a number of occasions. (See Sovereign Construction Company Limited case [1966] OLRB Rep. Sept. 422, Friedsman Department Store [1969] OLRB Rep. Sept. 794, Dominion Bridge Company Limited [1970] OLRB Rep. Apr. 57) The Board's approach to the question of the late filing of Form 8 has been expressed in the Canadian General Tower Limited [1968] OLRB Rep. Oct. '715 wherein the Board stated:

'Since Form 8 identifies and substantiates the documentary evidence of membership which has been previously filed, this type of evidence is acceptable at the hearing of an application pursuant to the provisions of section 48(2).

The Board's Rules of Procedure are not designed as obstacles placed in the path of parties to a proceeding, but are intended to permit the Board to administer the Labour Relations Act in a manner whereby one party will not be able to unfairly gain a procedural advantage over the other to the prejudice of the other party. The Board's primary function in an application for certification is to determine the true wishes of the employees in the bargaining unit in the exercise of their right to choose a bargaining agent. This function is not properly exercised if the Board refuses to make the determination of technical irregularity which in no way creates an unfair advantage prejudicial to the rights of a party or prevents the Board from properly assessing the evidence.'

(Cf. Wiltshire Catering Division of J. V. Wiltshire Ltd., [1975] OLRB Rep. Dec. 916.)

13. Having regard to all of the circumstances, including the fact that the stage of the hearing at which the other parties are given an opportunity to inspect the applicant's Form 8 Declaration(s) has not yet been reached in this case due to the dispute concerning the matters dealt with in this decision, the Board will enlarge the time prescribed for filing the Declaration (concerning the transferred cards) to permit the applicant to file it at the first day of continuation of hearing of this matter.

14. The respondent has alleged that the membership evidence filed in support of this application was obtained in whole or in part by intimidation or coercion on the part of the organizers. Since similar allegations have been made by the respondent in relation to the membership evidence filed in the full-time application (File No. 2604-80-R), the parties have agreed that all of the applicable evidence heard or to be heard by the Board in the full-time application is to be applied by the Board to the part-time application, and vice versa.

15. This matter is referred to the Registrar to be listed for continuation of hearing in Belleville on June 1, 2, and 3, 1981.