International Union of Allied Novelty and Production Workers, Local 905 v. Central Hospital, 1982 CanLII 850

[1982] OLRB Rep. March 347

2381-81-R International Union of Allied Novelty and Production Workers, Local 905, Applicant, v. Central Hospital, Respondent

BEFORE: R. D. Howe, Vice-Chairman, and Board Members W. H. Wightman and O. Hodges.

DECISION OF THE BOARD; March 8, 1982

1. This is an application for certification.

2. The applicant has requested that a pre-hearing representation vote be taken.

3. The respondent has filed with the Board a Form 10 Reply to this application in which it states (in paragraph 10):

“The respondent submits that the applicant is a trade union without status to represent employees in an office and clerical bargaining unit in a hospital in the health care field in Ontario and the application should therefore be dismissed. It is noted that the instant application was filed with the Board on February 17, 1982. The respondent wishes to point out that it was informed by the Board on February 18, 1982 that the applicant had withdrawn its Application for Certification previously filed in respect of employees of the respondent affected by this application (Board file number 2283‑81‑R). The respondent submits, in the circumstance, that the instant application constitutes an abuse of the Board's process under the governing legislation and should, accordingly, not be entertained. The respondent further submits that having regard to the foregoing considerations a pre-hearing representation vote ought not to be directed and the respondent requests that a hearing of the Board be held to deal with the issues raised above and such other representations as may be made on its behalf.”

4. In Emery Industries Limited, [1980] OLRB Rep. March 316, the Board described the purpose of a pre-hearing vote as follows:

“It is axiomatic that in labour relations matters 'time is of the essence'; but that is especially the case in respect of representation votes. If the trade union's certification application, and its status as bargaining agent, are not resolved expeditiously (i.e., if it cannot engage in collective bargaining, or perform the other representational functions for which it was selected) there may be discontent among its supporters and a possible erosion of that support. This might not only make the union's certification more difficult, but could also complicate its collective bargaining task. The purpose of the pre-hearing, or "quick vote' procedure is to facilitate a prompt resolution of representation questions, by permitting the Board to test employee wishes as soon as possible following the application date. This avoids the potential prejudice which might arise if a representation vote had to await a decision following a formal certification hearing. Some delay is inevitable, but the prehearing vote procedure is a legislative attempt to remove some of the problems, and prejudice, associated with delay while, at the same time, ensuring that all of the parties will be given a full opportunity to make their submissions with respect to any matters in dispute.”

(See also Harding Carpets Limited, Collingwood, Ontario, [1978] OLRB Rep. Jan. 46; and Saivette Famil)' Department Store Ltd., [1974] OLRB Rep. May 327).

5. The Board has a discretion under section 9 of the Labour Relations Act to direct that a pre-hearing representation vote be taken where an applicant trade union requests that such vote be taken (and the other requirements of that section have been satisfied). Thus, if the Board is of the view that the issues raised in an application under section 9 are of such nature or complexity that a pre-hearing representation vote would not be appropriate, the Board has a discretion to refuse the request for such vote. (See, for example, Howard Furnace Limited, [1961] OLRB Rep. July 98, in which the Board denied a request for a pre-hearing representation vote on the basis of "the complexity of the issues involved with respect to the composition of the bargaining unit".)

6. The Board's jurisprudence clearly indicates that an applicant is not precluded from utilizing the pre-hearing vote procedure prior to establishing its status as a trade union (see Groves Park Lodge, [1981] OLRB Rep. Nov. 1581, and Emery Industries Limited, supra). The Board has previously found the present applicant to be a trade union within the meaning of section l(l)(p) of the Labour Relations Act (see Regal, Division of General Mills, Ltd., Board File No. I 384-79-R, decision dated November 9, 1979, unreported). By virtue of section 105 of the Act, that finding is prima facie evidence in these proceedings that the applicant is a trade union for the purposes of the Labour Relations Act. Having regard to the desirability that the pre-hearing vote procedure be available whenever practicable as an expedited means of application whereby the wishes of the employees may be determfined at the earliest possible date, and having regard to the approach that the Board has generally adopted in pre-hearing vote applications in which the applicant's "status" is in issue, the Board is of the view that the issue of whether the applicant is "without status to represent employees in an office and clerical bargaining unit in a hospital in the health care field in Ontario" as alleged by the respondent, may properly be determined after a pre-hearing representation vote has been taken in this matter.

7. As noted in the respondent's Reply, this application was filed on February 17, 1982 at a time when a final decision had not yet been issued by the Board with respect to a previous certification application filed with the Board by the applicant (Board File No. 2283-8 l-R). By decision dated February 18, 1982, the Board, differently constituted, issued the following final decision with respect to that application:

“Application withdrawn by leave of the Board.”

8. Section 103(3) of the Act provides:

“Notwithstanding sections 5 and 57, where an application has been made for certification of a trade union as bargaining agent for employees in a bargaining unit or for a declaration that the trade union no longer represents the employees in a bargaining unit and a final decision of the application for such certification or for such a declaration is made with respect to any of the employees affected by the original application, the Board may,

(a) treat the subsequent application as having been made on the date of the making of the original application;

(b) postpone consideration of the subsequent application until a final decision has been issued on the original application and thereafter consider the subsequent application but subject to any final decision issued by the Board on the original application; or

(c) refuse to entertain the subsequent application."

Pursuant to section 103(3)(b), the Board postponed consideration of the present application until the final decision had been issued on the original application on February 18, 1982, and thereafter proceeded to consider the present application. It is, of course, nevertheless open to the respondent to contend at the hearing which will be held after the taking of the pre-hearing representation vote in this matter, that the Board should refuse to entertain this application.

9. The sealing of the ballot box pending the final determination by the Board of the issues raised by the respondent in its Reply will ensure that the respondent's position with respect to those issues is not prejudiced by the taking of the pre-hearing representation vote. If the Board were to direct a hearing in order to resolve those issues prior to recording the support enjoyed by the applicant in a representation vote, and the Board subsequently determined that a representation vote should be held, the applicant's position could be substantially prejudiced by the delay.

10. It 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 respondent in the voting constituency hereinafter described were members of the applicant at the time the application was made.

11. Having regard to the agreement of the parties, the Board directs that a pre-hearing representation vote be taken of the employees of the respondent in the following voting constituency:

“All office and clerical employees of the respondent at its hospital in Metropolitan Toronto save and except Supervisors, persons above the rank of Supervisor, Administrative Assistants to the Executive Director, the Administrator, the Assistant Administrators and the Personnel Director, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation periods.”

12. All employees of the respondent in the voting constituency on the 2nd day of March, 1982, who have not voluntarily terminated their employment or who have not been discharged for cause between the 2nd day of March, 1982, and the date the vote is taken will be eligible to vote.

13. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.

14. The Board directs that the ballot box containing all the ballots cast in the pre-hearing representation vote be sealed and that the ballots not be counted pending further direction by the Board, unless the parties hereto agree that the ballots should be counted.

15. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER OLIVER HODGES;

1. The applicant in this case has previously established status as a trade union before the Ontario Labour Relations Board as noted in paragraph 6 of this unanimous decision. My dissenting decision in Groves Park Lodge, [1981] OLRB Rep. November 1981, does not therefore impugn the present applicant.