Canadian Union of Operating Engineers and General Workers v. The Board of Governors of The Riverdale Hospital, 1981 CanLII 996

Canadian Union of Operating Engineers and General Workers v. The Board of Governors of The Riverdale Hospital

[1981] OLRB Rep. June 778

0450-81-R Canadian Union of Operating Engineers and General Workers, Applicant, v. The Board of Governors of The Riverdale Hospital, Respondent, v. The Toronto Civic Employees, Local 43 of The Canadian Union of Public Employees, Intervener.

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members O. Hodges and W. H. Wightman.

DECISION OF THE BOARD; June 17, 1981

Decision

1The name of the respondent is amended to read: "The Board of Governors of The Riverdale Hospital".

2This is an application for certification in which the applicant has requested that a pre-hearing representation vote be taken.

3It appears to the Board on an examination of the records of the applicant and the records of the respondent that not less than thirty-five per cent of the employees of the respondent in the voting constituency hereinafter described were members of the applicant at the time the application was made.

4The intervener contends that the application is untimely by operation of section 53 of The Labour Relations Act. The intervener submits, in support of this contention, that the application was made May 28, 1981, the same date when the Minister of Labour for Ontario appointed a conciliation officer to confer with the intervener and the respondent and to endeavor to effect a collective agreement between them. The intervener submits further that the Board should seal the ballot box following the taking of the representation vote and schedule the application for hearing so that the parties may make their submissions on the issue of timeliness. The applicant takes the contrary view that the application is timely and that the Board should determine the issue of timeliness without putting the application on for hearing.

5Since the respondent herein operates a hospital within the meaning of The Hospital Labour Dispute C Arbitration Act, certain aspects of the collective bargaining relationship of the parties is regulated by that statute. Timeliness of representation applications is one such aspect and where parties are duly negotiating for the renewal of a collective agreement, as in the case with the respondent and the intervener, subsection 2 of section 9 of The Hospital Labour Disputes Arbitration Act governs the question of their timeliness. It provides that "Notwithstanding section 53 of The Labour Relations A ct, ..., an application for certification of a bargaining agent of any of the employees of the hospital in the bargaining unit defined in the collective agreement... shall not be made after the day upon which the agreement ceased to operate or the day upon which the Minister appointed a conciliation office, whichever is later " The application and the copy of the letter appointing the conciliation officer which was filed with the respondent's reply establish, prima facie, that the application was made on the same date as the conciliation officer was appointed. Since the collective agreement expired December 31, 1980, the date of appointment of the conciliation officer is the date by which timeliness is to be determined pursuant to section 9(2). Since the application was made on the same day as the officer was appointed and not".., after the day upon which... the Minister appointed a conciliation officer,.. ." the Board finds the application to be timely within the meaning of subsection 2 of section 9 of The Hospital Labour Disputes Arbitration Act.

6Therefore, having regard to the agreement of parties, the Board directs that a pre­hearing representation vote be taken of the employees of the respondent in the following voting constituency:

All maintenance employees of the Respondent save and except foremen, persons above the rank of foreman, nursing, administrative, office and clerical employees, security guards, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period and employees falling within the scope of collective agreements between the Hospital and the Canadian Union of Public Employees, Local 79 and the Canadian Union of Operating Engineers and General Workers Local 101.

7For purposes of clarity, the Board notes the agreement of the parties that, while the collective agreement between the intervener and the respondent describes the bargaining unit differently than the voting constituency described above, the description of the voting constituency includes exactly the same employees as are represented by the intervener pursuant to its collective agreement with the respondent.

8The Board directs that should Mr. T. Keenan present himself at the polling station, he shall be permitted to vote and his ballot shall be segregated and not counted pending further direction by the Board.

9All employees of the respondent in the voting constituency on the 9th day of June, 1981, who have not voluntarily terminated their employment or who have not been discharged for cause between the 9th day of June, 1981, and the date the vote is taken will be eligible to vote.

10Voters will be asked to indicate whether they wish to be represented by the applicant or the intervener in their employment relations with the respondent.

11The matter is referred to the Registrar.