Health, Office and Professional Employees, Local 1976 v. Brewers Nursing Home, 1981 CanLII 830

0432-81-R Health, Office and Professional Employees, Local 1976 Chartered by the United Food & Commercial Workers International Union, C.L.C., A.F.L.— C.I.O., Applicant, v. Brewers Nursing Home, Respondent, v. Group of Employees, Objectors

BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.

DECISION OF THE BOARD; July 30, 1981

1. By decision dated June 22, 1981 in this application for certification, the Board appointed a Board Officer "to inquire and report to the Board as to the nature of the employ­ment relationship, if any, which existed between the respondent and Joanne Johnston on the date of this application (May 27, 1981), and as to the nature of the work performed by Lois McAlpine."

2. In a joint letter dated July 10, 1981, the representatives of the parties advised the Board that they had agreed to submit written argument to the Board by July 25, 1981, with respect to Ms. Johnston, on the basis of the following agreed statement of facts:

"I. Joanne Johnston, a student, made application for summer employment with the Respondent Nursing Home by application dated the 29th day of April, 1981 for work as a Nurses Aide or Kitchen Aide.

2. She was initially interviewed by Nancy Ostrander, Administrator —Director of Nursing Services on April 29th, 1981.

3. Joanne Johnston was hired to work in the nursing home by Nancy

Ostrander in a telephone interview on May 21st, 1981 at which time

Joanne Johnston accepted employment.

4. A second interview on June 2nd, 1981 was conducted. The Interviews on April 29th, 1981 and June 2nd, 1981 were at the Respondent nursing home.

5. Joanne Johnston attended at the nursing home on June 11th and June 18th for two hour orientation procedures. Ms. Johnston was not paid for those two attendances at the Respondent nursing home.

6. On June 23rd and thereafter Ms. Johnston attended at the nursing home and from that date and continuing was paid for work performed as a Kitchen Aide."

In their joint letter the parties also stated:

"The parties reserve the right to make submission to the Board regarding the Union's challenge to Lois McAlpine and the Union may be making a further submission with respect to an employee — Joanne Lynch.

The above two challenges are dependent upon the Board's decision relating to Joanne Johnston."

3. The applicant submitted the following written argument with respect to Ms. Johnston:

"It is the applicant's contention that Joanne Johnston was not an employee of the respondent on the date of application, May 27, 1981, within the meaning of the Act.

Joanne Johnston is a student employed during the school vacation period and as such applied for a job April 29, 1981 and was notified, by phone, of her acceptance on May 21, 1981. She was interviewed on June 2, 1981. She attended the Home for two unpaid two hour orientation sessions on June 11th and June 18th. She finally reported for work on June 23, 1981 at which time she became employed as a kitchen aide and began to receive wages.

Until June 23, 1981, the respondent exercised no management control over Joanne Johnston.

Until June 23, 1981, Joanne Johnston was not an employee of the Home having performed no work for the respondent.

Joanne Johnston did not attend the Home, even for unpaid orientation, until June 11, 1981, some nine days after her initial interview with the respondent, some twenty-one days after being informed that she would get the summer job, and some fifteen days after the date the applicant applied for certification.

There were none of the normal ingredients of employment in the rela­tionship between Joanne Johnston and the respondent on May 27, 1981.

The Board should find, based on the facts that Joanne Johnston was not an employee of the respondent on the date of application."

4. In his written submissions to the Board, counsel for the respondent stated:

"Further to the joint letter of myself and Mr. Reilly dated July 10, 1981, and enclosed Statement of Facts, it is respectfully submitted that Joanne Johnston should be included in Schedule B for the purposes of the count in this application for certification. At the outset I might add, without reference to personnel files, it was my client's understanding that Joanne Johnston had in fact attended at the nursing home prior to May 27, 1981, for the two-hour orientation procedures referred to in paragraph 5 of the Agreed Statement of Facts.

In any event, it is agreed between the parties that Ms. Johnston was actually hired prior to May the 2 1st, 1981, as a nurse's or kitchen aide. Accordingly, there is no question that there was an intention on both the part of the home and Ms. Johnston that an employment relationship be established for the Summer while she was on vacation from school.

This intention was carried forward in that Ms. Johnston actually commenced employment, and continues employment, with the nursing home.

There is no evidence before the Board, nor is there an allegation before the Board, that this employee was hired in an effort to dilute the bargaining unit in the face of a union application for certification. On the contrary, the Agreed Statement of Facts sets out a bona fide hiring of a summer employee.

As a result it is respectfully submitted that this employee has a very definite interest in the application for certification by the union and at all appropriate times was hired by the home as a summer aide notwithstand­ing the fact that by some coincidence she was not actually, physically at work until shortly after the application for certification.

For all these reasons it is respectfully submitted that Joanne Johnston should be retained on the lists for the purposes of the count. To do otherwise would deny her a right to be included in the determination of whether or not the union should be certified without a vote or whether or not a representation vote should be taken.

Outright certification without a vote should not be a consequence of a freak coincidence. There is no question she was hired prior to the application for certification and intended to work at the nursing home for the Summer. Had the application for certification been a few weeks later, there is no question she would have been included on the lists.

That being the case, she should now be included for the purposes of the count.”

5. Section 7(1) of the Act provides as follows:

7.-( I) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union of such time as is determined under clause j of subsection 2 of section 92.

6. In Amplifone Canada Ltd., [1967] OLRB Rep. Dec. 840, the Board described its general practice (in applications for certification other than those filed under the "Construction Industry" provisions of the Act) with respect to determining the number of employees in the bargaining unit at the time the application was made (sometimes referred to as the "unit time") as follows:

"14. Although the unit time is determined by the provisions of section 7(1), nothing is said in that section or elsewhere in the Act concerning the method or criteria to be used by the Board in ascertaining the number of employees in the bargaining unit at the material time. The determination as to whether a person is or is not to be numbered as an employee on the date of application is, therefore, left entirely to the discretion of the Board. To ensure consistency and order in its proceedings and with a view to the purely practical difficulties involved, the Board has adopted certain practices and rules of thumb applicable to the various situations which commonly arise in the employer-employee relationship.

15. As an assistance to the Board in arriving at a decision with respect to the number of persons in the bargaining unit, the employer is asked to file with the Board schedules listing its employees. The schedules form part of the reply required under section 7 of the Board's Rules of Procedure. The headings of the schedules are set out below:

SCHEDULE "A"

List (alphabetically arranged) of all employees in the bargaining unit described in the application of the applicant as at the day of , 19 . (Do not include the names of employees that appear in B, C or D.)

NAME OCCUPATIONAL CLASSIFICATION

SCHEDULE "B"

List (alphabetically arranged) of all employees regularly employed for not more than twenty-four hours per week in the bargaining unit described in the application of the applicant as at the day of ,19

NAME OCCUPATIONAL CLASSIFICATION

SCHEDULE "C"

List (alphabetically arranged) of all employees who were not actually at work on the day of , 19 ,by reason of lay-off, in the bargaining unit described in the application of the applicant as at the day of ,19

NAME

OCCUPATIONAL CLASSIFICATION

DATE OF LAY-OFF

EXPECTED DATE OF RECALL

SCHEDULE "D"

List (alphabetically arranged) of all employees not previously shown who were not at work on the day of ,19 ,in the bargain­ing unit described in the application of the applicant as at the day of ,19

NAME

OCCUPATIONAL CLASSIFICATION

LAST DAY WORKED

REASON FOR ABSENSE

EXPECTED DATE OF RETURN

16. It is convenient to deal with the schedules now in reverse order. The rule of thumb applicable to Schedule "D" is that the Board, at the hearing, determines if the persons named thereon have worked within the month immediately preceding the date of application and have either returned to work within the month immediately following the date of application or are expected to so do. If these conditions prevail the employee concerned is considered by the Board to be an employee for the purpose of the unit count. If all are not fulfilled he is not numbered in the unit count.

17. Where an employee is listed on Schedule "C", he is found to be an employee for the purpose of the unit count if he worked at any time during the month immediately preceding the date of application and is to be recalled or has been recalled within the month immediately following the date of the application. Again, unless both conditions are met, such a person is not counted in the unit (Bertrand & Frere Construction Co. Limited Case, File No. 10347-65-R ...

(The Board proceeded to rule in that case that persons who, not having been forewarned of any lay-off by their employer, presented themselves at their place of work on the date of the certification application in the reasonable expectation of carrying on their normal employment, must be found to be employees in the bargaining unit on the date they so reported, notwithstanding that they were laid off indefinitely without performing any work on that date.)

7. Thus, to be included as an employee in the bargaining unit for the purposes of the count, a person who was not at work on the date of the application must generally have been at work at some time during the one month period prior to the application date and have returned to work (or have been expected to return to work) within the one month period following the application date. (See also Irwin Toy Limited, [1970] OLRB Rep. Dec. 912; Keynorth Limited, [1970] OLRB Rep. July 477; Mobile Cartage and Distributors Ltd., [1968] OLRB Rep. Nov. 814; and West Elgin District High School Board, [1968] OLRB Rep. July 379.) This longstanding practice of the Board enables the parties to ascertain in advance of the hearing the persons who will be included for purposes of the count (see Sydenham District Hospital, [1967] OLRB Rep. May 135). A further reason for the existence of the practice is that it lends to exclude from the count persons who have not been at work during the trade union's organizing campaign and have not had an opportunity to express their support for or opposition to the trade union (see Bertrand & Frere Construction Co. Limited, [1965] OLRB Rep. July 292). As noted in Sydenham district Hospital, supra, a person who is found by the board not to be an employee for the purposes of the count through the application of that "rule of thumb" may nevertheless "be considered to be an employee for other purposes" such as seniority rights.

8. Although Ms. Johnston was hired by the respondent prior to the date of this application, it appears to the Board that her first day "at work" was probably June 23, 1981, i.e., the day on which she began to perform work as a Kitchen Aide for which she was remunerated by the respondent, as it is highly doubtful that mere attendance by a person without remuneration at an employer's premises for "two hour orientation procedures" would lead the Board to conclude that the person was "at work" on the day in question for the purposes of the Board's "one month rule". However, it is unnecessary to express a final view on that matter in the instant case as the attendance by Ms. Johnston at the respondent's nursing home for orientation procedures did not occur until after the date of the application. Her only attendance at the respondent's premises in the month prior to the date of the application occurred on April 29, 1981, when she was interviewed as an employment applicant by the Director of Nursing Services. Since that attendance at the nursing home occurred prior to her date of hire by the respondent, it clearly did not constitute being "at work". Thus, the case of Ms. Johnston, who was not at work on the date of the application, does not meet the requirements of the Board's "one month rule" since she was not at work at any time during the one month period immediately preceding the date of the application. Moreover, the exclusion of Ms. Johnston for purposes of the count is justified by the rationale upon which this well established practice of the Board is based. She clearly was not at work during the applicant's organizing campaign; in the absence of attendance at work by Ms. Johnston at some time during the month prior to the application, the organizers of the applicant would in all probability be unable to ascertain her identity with a view to contacting her for organizational purposes or with a view to determining the number of employees who would be included in the bargaining unit for purposes of the count.

9. For the foregoing reasons, the Board, having regard to the agreed Statement of Facts and the written submissions of the parties, rules that Joanne Johnston was not an employee of the respondent in the bargaining unit on May 27, 1981 for the purposes of the count in this certification application.

10. The Board has determined that the applicant's right to certification cannot be affected by the Board's ultimate decision concerning whether Lois McAlpine and Joanne Lynch (or either of them) are to be included in or excluded from the bargaining the unit. On the basis of all the evidence before it, the Board is satisfied that more than fifty-five percent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on June 9, 1981, the terminal date fixed for this application and the date which the Board determines under section 92(2)(j) of The Labour Relations Act to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

11. Accordingly, the Board pursuant to its discretion under section 6(1a) of the Act and pending the final resolution of the composition of the bargaining unit, certifies the applicant as the bargaining agent for all employees of the respondent in The Township of South Marysburgh in the County of Prince Edward, save and except supervisors, persons above the rank of supervisor, graduate and registered nurses, and office and clerical staff, and pending the final determination of the matters in dispute, excluding as well Lois McAlpine and Joanne Lynch.

12. A formal certificate must await the final resolution of the matters that remain in dispute.