Canadian Union of Public Employees v. St. Joseph Nursing Home (Rockland) Limited

[1983] OLRB Rep. December 2110

1149-83-R Canadian Union of Public Employees, Applicant, v. St. Joseph Nursing Home (Rockland) Limited, Respondent, v. Group of Employees, Objectors

BEFORE: R. D. Howe, Vice-Chairman, and Board Members W. G. Donnelly and F. S. Cooke.

APPEARANCES: Robert Rouleau for the applicant; W T Langley and Roger Charron for the respondent; Noella Morin for the objectors.

DECISION OF THE BOARD; December 1, 1983

1. In a decision dated October 4, 1983 in this application for certification, another panel of the Board directed that a representation vote be taken of the employees in bargaining unit #1 (full-time employees) and bargaining unit #2 (part-time employees and students), as described in paragraph 4 of that decision. (It appears that "persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period" were inadvertently omitted as express exclusions from bargaining unit #1 in that paragraph.)

2. No statement of objections and desire to make representations has been filed with the Board concerning bargaining unit #2 within the time fixed under subsection I of section 70 of the Board's Rules of Procedure following the taking of the representation vote in respect of that unit pursuant to the Board's direction of October 4, 1983. On the taking of that vote, not more than fifty per cent of the ballots cast were cast in favour of the applicant. Accordingly, the application for certification in respect of bargaining unit #2 will be dismissed (with the usual six month bar).

3. A timely statement of objections and desire to make representations (in the form of a letter dated October 20, 1983) was filed with the Board by Jocelyne Dupuis and France Faubert. Accordingly, a hearing was held in Ottawa by this panel of the Board on November 21, 1983 for the purpose of considering the report of the Returning Officer, and the evidence and representations of the parties with respect to that letter.

4. Mrs. Dupuis commenced employment with the respondent in September of 1978 and worked as a full-time nurse's aide until March 31, 1983 when she went on maternity leave until October 15, 1983. (Although her leave was originally scheduled to expire on September 17, Mrs. Dupuis telephoned Yolande Beauchamp, the respondent's Director of Nursing, in early September and indicated that she had been advised by her physician that she would not be fit to return to work until mid October. Accordingly, Mrs. Beauchamp agreed to hold her job open until that time.)

5. Mrs. Faubert's employment with the respondent commenced in January of 1980 and she also worked as a full-time nurse's aide until she went on maternity leave on July 21, 1983. As of the date of the hearing of this matter, Mrs. Faubert had been cleared by her physician and expected to return to work on November 28, 1983. Mrs. Beauchamp testified that the respondent is also holding Mrs. Faubert's job open by using part-time employees to fill in during her absence.

6. Prior to the October 13, 1983 representation vote, Mrs. Dupuis and Mrs. Faubert each received in the mail the following notice (printed in English and French) from the applicant:

TO ALL EMPLOYEES OF ST. JOSEPH NURSING HOME

As you know, many of your fellow employees have decided to help improve their working conditions by joining C.U.P.E. — the Canadian Union of Public Employees. They did that because they know that C.U.P.E. is the major Union for nursing home workers in Ontario. It has helped thousands of employees like you, win better conditions of work.

Meanwhile, some employees have signed a petition saying they do not want a Union to help them improve their jobs and this has created some ill-feelings. But we should all be working together to help ourselves, our families and the patients. That is why the question of a Union for us will be settled by a vote next Thursday, October 13th. The Ontario Labour Relations Board will conduct the vote and make sure it is secret — no one will ever know how you voted.

Let's start working together. Because by working together in a Union, we can all help each other improve working conditions. Vote for yourself, Thursday and vote for C.U.P.E.

DATE: October 13, 1983

PLACE: Recreation Room St. Joseph Nursing Home

TIME: 7:00 a.m. to 9:00 a.m. 3:00 p.m. to 5:00 p.m.

NOTE: You are entitled to vote during working hours!

If you want to improve your working conditions, make sure you come and vote on Thursday and vote for yourself — vote for C.U.P.E.

For more information, contact: Alice Leblond 446-4423 Pierrette Cote 488-2671

7. Prior to the date of the representation vote, Mrs. Faubert telephoned Therese Desormeaux, another of the respondent's full-time nurse's aides, and requested Mrs. Desormeaux to drive her to the respondent’s premises on October 13, 1983 so that she could vote. Mrs. Desormeaux agreed to do so. However, when she found that Mrs. Faubert’s name was not on the voters’ list (posted by the respondent in conspicuous places on its premises, together with the Board’s Form 69 Notice of Taking of Vote, in accordance with the Deputy Registrar’s written instructions), she "phoned [Mrs. Faubert] and told her that she couldn't come to vote because her name wasn't on the list."

8. The third sheet of the voters' list contains the following information:

ANY EMPLOYEE WHOSE NAME DOES NOT APPEAR ON THE VOTERS' LIST OR CHALLENGED VOTER WHO FEELS THAT HE OR SHE IS ENTITLED TO VOTE SHOULD TAKE THIS MATTER UP WITH THE RETURNING OFFICER DURING THE TAKING OF THE VOTE.

Mrs. Desormeaux did not read that sheet and, accordingly, did not communicate that information to Mrs. Faubert. Nor did she inform Mrs. Faubert that the Board's Form 69 Notice of Taking of Vote contains the following statement: "The Returning Officer is the proper person to whom inquiries should be directed by employees who are in doubt as to their eligibility to vote or as to the voting procedure."

9. Although Mrs. Faubert testified that she "wondered why [her] name wasn't on the list", she did not attempt to contact anyone from the Board, the employer, or the union about that matter prior to the vote. It was only after the vote had been conducted and the ballots counted that Mrs. Faubert raised any question or objection about the matter.

10. When Mrs. Dupuis attended at the respondent's premises on October 13 for the purpose of voting, Yolande Beauchamp, who served as the respondent's scrutineer at the vote, told her that she could not vote because her name was not on the voters' list. Robert Rouleau, the applicant's scrutineer who was seated nearby, confirmed that her name was not on the list. When Mrs. Dupuis asked why she could not vote, Mrs. Beauchamp told her that she was ineligible to vote because she was on maternity leave. Mr. Rouleau did not at that time express any disagreement with that statement (although he advised the Board at the hearing of this matter that the union does not dispute the right of an employee to vote while on maternity leave). Mrs. Dupuis then turned, walked out of the room where the vote was being held, and went back home. After she left, the Board's Returning Officer, who had either not heard or fully understood the conversation between Mrs. Dupuis and Mrs. Beauchamp asked the latter, "Why couldn't she (Mrs. Dupuis) vote?" When Mrs. Beauchamp answered, "Because she's on maternity leave", the Returning Officer indicated that (in Mrs. Beauchamp's words) "something could have been done". While Mrs. Beauchamp could not recall precisely what the Returning Officer said, it is probable that he attempted to indicate to the scrutineers that Mrs. Dupuis could have been permitted to cast a segregated ballot (in accordance with the normal practice adopted in situations involving a person whose eligibility to vote is in doubt). However, by that time Mrs. Dupuis had departed and it appears from the evidence before the Board that no one attempted to contact her to correct the misinformation that she had been given by Mrs. Beauchamp, with the acquiescence of Mr. Rouleau.

11. On the Tuesday following the vote, Mrs. Desormeaux called Mrs. Faubert and told her that a sheet had been posted (Form 70 Notice of Report of Returning Officer) which indicated that employees had until October 21, 1983 "to contest". The next day Mrs. Faubert and Mrs. Dupuis spoke with Mrs. Beauchamp and told her that they wanted to contest the vote. Mrs. Beauchamp, who "didn't know what to say", expressed doubts concerning whether it would be "worth it" for them to cause further hard feelings within the Home by attempting to contest the vote. However, she agreed to ask the owner (Roger Charron) if anything could be done. When Mrs. Beauchamp raised the matter with Mr. Charron, he contacted counsel, on whose advice Mrs. Faubert and Mrs. Dupuis were told that it was their privilege to raise the matter with the Board if they wished to do so, but that "whatever they did, they were on their own" because management "didn't want to get involved".

12. Mrs. Dupuis and Mrs. Faubert have requested the Board to set aside the aforementioned vote and direct that a further representation vote beed in the aforementioned statement of desire filed with the Board by Mrs. Dupuis and Mrs. Faubert. Under the circu argument that there was a nurse's aide on Workmen's Compensation at the time the vote was ordered who may not have been given an opportunity to vote. However, no evidence whatsoever was adduced before the Board concerning that person's circumstances, or concerning whether he or she attempted or even desired to vote. That individual has not filed a statement of desire in accordance with section 70(1) of the Rules of Procedure, nor is he or she referred in the aforementioned statement of desire filed with the Board by Mrs. Dupuis and Mrs. Faubert. Under the circumstances, we are not prepared to take into consideration in deciding this case the respondent's belated reference to that individual. Not only is there no evidence before the Board from which it can be determined whether that person was eligible to vote and, if so, whether he or she desired or attempted to vote, but there is also nothing before us which suggests that any representative of the respondent ever proposed at any time prior to the argument stage of the hearing of this matter that the individual in question should be added to the voters' list to which the parties agreed on October 3, 1983. Moreover, the applicant received no notice prior to the hearing of this matter that anyone intended to raise any matter pertaining to that individual. Accordingly, we shall dispose of this application without further reference to that person.

13. In his submissions on behalf of the applicant, Mr. Rouleau stated that the union does not dispute the right of an employee to vote while on maternity leave. However, he noted that neither Mrs. Dupuis nor Mrs. Faubert contacted the Board, the employer, or the union prior to the vote to complain about their omission from the voters' list. Rather, they objected only after the results of the vote were known. Accordingly, Mr. Rouleau contended that the applicant should be certified forthwith and that no further vote should be directed.

14. Noella Morin appeared at the hearing as the representative of the objectors. She was afforded an opportunity to adduce evidence and to make submissions to the Board but declined to do so.

15. As indicated above, it was common ground among the parties who made submissions to the Board in respect of this matter that an employee on maternity leave is eligible to cast a ballot in a representation vote. In The Regional Municipality of Durham, [1980] OLRB Rep. Jan. 90, the Board accepted the agreement of the parties to that case and ruled that a registered nurse absent on pregnancy leave was eligible to vote in a representation election. In determining the eligibility to vote of a person who is not at work on the date of a representation vote, the Board has regard to the continuance of the employment relationship (see, for example, Canac Kitchens Ltd., [1978] OLRB Rep. Aug. 723, and SGS Supervision Services Inc., [19821 OLRB Rep. Jan. 105). Thus, in Alex's Plumbing and Heating Limited, [1970] OLRB Rep. Feb. 1321, the Board held that an employee who had been absent from work on Workmen's Compensation for about two months prior to a representation vote was eligible to vote since he remained an employee of the company at the time of the vote. (In that case, it was the evidence of the individual in question that "he had not terminated his employment with the respondent, he had not asked for his unemployment insurance book and that he wanted to return to work for the respondent as soon as he got his release from the doctor and the Workmen's Compensation Board." That evidence was confirmed by the president of the respondent company.)

16. It is well established in the Board's jurisprudence that persons on indefinite layoff are not permitted to cast ballots in Board representation votes (see, for example, Hurdman Bros. Limited, [1983] OLRB Rep. Feb. 238, and Custom Aggregates, [1978] OLRB Rep. March 215). The rationale for that approach is that it would be unfair to allow persons whose prospects for continued employment are so uncertain to participate in the selection or rejection of a bargaining agent. The same cannot legitimately be said of a person who is absent from work on maternity leave. Under section 38 of the Employment Standards Act, R.S.O. 1980, c. 137, a person who is absent from work on "pregnancy leave" is, on the expiration of such leave, entitled to return to her previous position with the employer (or to alternative work of a comparable nature at not less than her wages at the time her leave began). Thus, the Board is satisfied that the parties are correct in their view that employees such as Mrs. Dupuis and Mrs. Faubert who are absent from work on maternity leave when a representation vote is directed or taken, but have not resigned or been terminated, are eligible voters because their prospects for continued employment are sufficiently certain to render it appropriate for them to participate in a representation vote.

17. However, a finding of eligibility to vote does not, of course, resolve the instant case. It is necessary to consider whether the facts set forth above should prompt the Board to set aside the representation vote in the circumstances of this case and direct that a further representation vote be taken. Having regard to all of the evidence and the submissions of the parties, the Board is of the view that it should not exercise its discretion to set aside that vote and order a further representation vote in the circumstances of this case. As indicated above, although Mrs. Faubert was aware that her name was not on the voters' list, she did not attempt to contact anyone from the Board, the employer, or the union about the matter prior to the vote, despite the fact that she had received a notice from the union suggesting that she was entitled to vote and providing her with the names and telephone numbers of two fellow employees who could be contacted for more information. That notice also informed her that the ''Ontario Labour Relations Board will conduct the vote''. Thus, it should have been apparent to Mrs. Faubert, regardless of whether she was aware of the information contained on the third page of the voters' list or on the Board's Form 69 Notice of Taking of Vote, that she could contact the Board prior to the vote or attend at the respondent's premises on the day of the vote to question her omission from the voters' list and attempt to obtain permission to cast a ballot. The dramatic contrast between Mrs. Faubert's inaction prior to the vote and the vehemence with which she asserted her position at the hearing of this matter, and our overall assessment of the credibility of her evidence, lead us to conclude that Mrs. Faubert only became truly concerned about her omission from the voters' list after she became aware that a majority of the ballots cast in the representation vote in respect of bargaining unit #1 were marked in favour of the applicant. (Fifteen of the twenty-eight ballots were marked in favour of the applicant, with the remaining thirteen ballots being marked against the applicant.) While it is regrettable that the parties omitted her name from the voters' list, we are not prepared to set aside the representation vote on the basis of the circumstances pertaining to Mrs. Faubert, as she did not make any effort to remedy the situation prior to the vote. Where prior to and on the day of a vote an employee has unreasonably remained silent and inert concerning his or her eligibility to vote, it is inappropriate and inconsistent with the purposes of the Labour Relations Act to permit that employee, prompted by dissatisfaction with the results of the vote, to belatedly attempt to overturn those results by having the vote set aside. Had Mrs. Faubert taken the obvious step of attending at the vote and raising with the Returning Officer the matter of her eligibility to vote, she would undoubtedly have been permitted to cast a ballot (which would have been segregated by the Returning Officer if any of the parties had challenged her eligibility to vote). In the absence of any such action, or of any inquiry to the Board, the union, or the employer by Mrs. Faubert prior to the vote, we are not prepared to grant her request that a new vote be directed so that she may now cast a ballot.

18. The circumstances pertaining to the unsucessful attempt by Mrs. Dupuis to be permitted to cast a ballot in the representation vote are considerably more compelling than those described above in respect of Mrs. Faubert. However, even if Mrs. Dupuis had not abruptly departed from the voting area but rather had remained to speak with the Returning Officer and had been permitted to cast a (segregated or nonsegregated) ballot, such ballot could not have materially affected the outcome of the vote since the union would have won the vote by a margin of at least one ballot, regardless of whether she voted in favour of the union or against it. Thus, a ballot cast by Mrs. Dupuis could not have affected the applicant's entitlement to certification under section 7(3) of the Act which provides, in part, as follows:

If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade union, ... the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit.

19. For the foregoing reasons, the Board declines to set aside the representation vote or direct that a further representation vote be taken.

20. A certificate will issue to the applicant in respect of bargaining unit #1 (that is, all employees of the respondent in Rockland, Ontario, save and except professional medical staff, graduate nursing staff, undergraduate nursing staff, supervisors, persons above the rank of supervisor, technical and office staff, employees regularly employed for not more than twenty-four hours per week, and students employed during the school vacation period).

21. The application for certification in respect of bargaining unit #2 is hereby dismissed.

22. The Board will not entertain an application for certification by the applicant with respect to any of the employees of the respondent in bargaining unit #2 within the period of six months from the date hereof.

23. The Registrar will destroy the ballots cast in the representation votes taken in this matter following the expiration of thirty days from the date of this decision unless a statement requesting that the ballots not be destroyed is received by the Board from one of the parties before the expiration of such thirty day period.