Ontario Labour Relations Board

[1984] OLRB Rep. September 1264

0586-84-R Canadian Union of Operating Engineers and General Workers, Applicant, v. The Sisters of St. Joseph of the Diocese of London in Ontario operating St. Joseph's Hospital at Sarnia, Ontario, Respondent

BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members F.W. Murray and B.L. Armstrong.

DECISION OF THE BOARD; September 27, 1984

1. This is an application for certification in which a pre-hearing representation vote was requested. Application was made May 30, 1984, and in the normal course a Labour Relations Officer was appointed the same day to confer with the parties regarding the bargaining unit description and employee lists. A meeting pursuant to such appointment was arranged for June 13, 1984. On June 12, 1984 the Board received a telex from the applicant requesting leave to withdraw the application. The respondent objects to this withdrawal and requests a dismissal with the imposition of a 10-month bar to any future application for certification with respect to the same or similar unit. The bargaining unit applied for is:

All lay employees of St. Joseph's Hospital Sarnia save and except professional medical staff, graduate nursing staff, undergraduate nurses, graduate pharmacists, undergraduate pharmacists, graduate dietitians, student dietitians, social workers, social work assistants, persons engaged in research work, technical personnel (including in this exception, graduate and undergraduate: audiologists, physio-, occupational, psychiatric and speech therapists, psychologists, psychometrists, computer programmers, biomedical repair technicians, certified and non-certified dental assistants, photograph technicians and artists — medical illustrators, registered, non-registered and student: laboratory technicians, X-Ray technicians, respiratory technicians, electrocardiogram technicians, electroencephalogram technicians, pulmonary technicians, nuclear medicine technicians, ophthalmic technicians, and laboratory assistants) supervisors, persons above the rank of supervisor, foreman, persons above the rank of foreman, chief engineer, those covered by subsisting collective agreements, office and clerical staff, (including in this exception: ward clerks, admitting clerks, receptionists, safety and security officers, information clerks, mail clerks, cashiers, librarians and switchboard operators), security guards, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period.

2. This application is the fourth by the applicant in connection with some or all of this group of employees. The first (Board File No. 0448-83-R) was an application made in May of 1983 to represent 9 employees whose classifications were carpenter, painter, maintenance helper, electrician, maintenance mechanic, maintenance co-ordinator. The Board determined that this was not a bargaining unit appropriate for collective bargaining because it was not the broad service type of unit (the same as described above in paragraph 1) which the Board had in numerous prior decisions found to be appropriate in the hospital context. At the time of the first application, there were approximately 120 employees in the broader unit. Since the applicant did not have sufficient membership evidence for the broader unit, the Board dismissed the application after a hearing.

3. The second application (Board File No. 1855-83-R) made on November 14. 1983 was for representation rights for all employees in the appropriate bargaining unit. In that application the applicant requested a pre-hearing representation vote and the parties met with a Labour Relations Officer in the normal course. At that meeting the applicant withdrew its application because it had not filed sufficient membership evidence to meet the minimum requirements for a pre-hearing vote. The respondent objected to the withdrawal and requested the Board to dismiss with a 6-month bar pursuant to its powers under section 103(2)(i) of the Act. The Board allowed the application to be withdrawn notwithstanding section 5 of Practice Note No. 7.

4. The third application (Board File No. 2988-83-R) reported [1984] OLRB Rep. Apr. 651, was filed in March of 1984, again for the appropriate bargaining unit, and again requesting a pre-hearing vote. The parties again met with a Labour Relations Officer. Again, after the applicant assessed its membership evidence and it fell short of the thirty-five per cent necessary for a pre-hearing vote, the applicant requested leave to withdraw. On this occasion as well the respondent pressed for a dismissal with a bar this time of 12 months. The Board considered this request and, while dismissing the application, refused to impose a bar for the following reasons:

5. This is an application for certification in which the applicant seeks leave of the Board to withdraw the application. The respondent, citing two previous unsuccessful applications, asks the Board to dismiss the application and impose a bar upon the filing of a subsequent application for a period of one year. The applicant, in support of its position that a bar not be imposed, points out that the first unsuccessful application was in respect of a nine (9) man maintenance unit that the Board found not to be appropriate for purposes of collective bargaining. The instant application, and the one immediately before it, are in respect of all support employees. The Form 9 filed by the union and the lists of employees filed by the respondent indicated that there are approximately 160 employees in this bargaining unit.

6. In the Patchoque Plymouth Hawkesbury Mills case [1972] OLRB Rep. July 747 the Board briefly set out in paragraph 7 those types of situations which have led the Board to exercise its discretion under section 103(2)(j) and impose a bar for a specific period of time on subsequent certification applications. The third type of situation referred to in the Patchoque case supra, is analogous to the case at hand and pertains to those instances where the Board is asked to exercise its discretion following the dismissal of a series of applications over a short period of time which cover essentially the same employees. In this regard the Patchoque case supra refers to the J. W Crooks Company case [1972] OLRB Rep. Feb. 126 wherein the Board imposed a six month bar following the dismissal of an application which was the fourth unsuccessful application brought within a period of little more than three months. In the Ken Bunyak's Bus Lines case, Board File No. 571 4-74-R, the Board found that a second unsuccessful application within a short period of time did not warrant the imposition of a bar to a third application. Although each case must be decided on its particular merits, these cases establish parameters which in the absence of special circumstances are persuasive.

7. The first application, as we have noted, was in respect of nine maintenance employees. Although these nine employees fall within the much larger all-employee unit (approximately 160 employees) for which the union has sought bargaining rights in this and the previous application, it can hardly be said that the first application pertains to the same employee group as would cause the degree of unrest and uncertainty necessary to support the imposition of a bar to a subsequent application.

8. The Board invited submissions from the applicant and the respondent in the current application for certification regarding whether there should be an imposition of a bar. The respondent submitted that the employer had been put to considerable inconvenience in having to deal with four applications for certification over a period of one year. These applications had been dealt with on a priority basis, as is necessary, and time (for overtime and weekend hours) was spent computing the hours of employees to determine whether or not they fell into the full-time category. The respondent feels it has experienced enough inconvenience and ought to be spared this for 10 months from May 30, 1984.

9. The applicant submitted that in its application in Board File No. 1855-83-R it withdrew the application because the lists prepared by the employer contained 174 names and the applicant only represented 33% of them. In the application in Board File No. 2988-83-R the applicant withdrew because out of the 174 names on the employer list, which list the union claims (but does not elaborate thereon) was substantially different from the previous list, the applicant still had less than the required 35% support. Finally, in the current application the applicant noticed in the employer's reply that it was claiming 194 employees in the unit and the applicant, knowing it did not have support of 35% of this number, withdrew prior to the meeting with the Labour Relations Officer, and prior to examining the lists. The respondent considers the latest withdrawal as evidence that the applicant had no more cards than it had in the previous application in March or, alternatively, as poor organizing on the union's part not to provide for fluctuations on the list. The respondent also points out that the shortfall of cards on a pre-hearing application is materially different from a shortfall of cards on an application pursuant to section 7.

10. The Board considers that we are considering in this case the imposition of a bar following three unsuccessful applications over a period of six months. The first application could not reasonably be considered disruptive or causing unrest or undue hardship on the respondent. The lists prepared were dealing with only 9 employees and the lack of success in the first application is attributable to the Board's assessment of the appropriateness of that unit.

11. The second application was made on the basis of the applicant's perception that it had more than 35% of the unit. Logically, when this perception was found to be in error, the applicant attempted to withdraw. Considering the stage at which the withdrawal occurred in light of Practice Note No. 7, the application should have been dismissed.

12. The third and fourth applications must be evaluated against the fact that the applicant would have had clearer perceptions about the likely size of the unit after the second application. The third application took place more than 4 months later than the second application. That length of time alone would have raised the prospect that the number in this type of a bargaining unit could change significantly and, therefore, the applicant took certain risks in waiting this long to reapply. Those risks may have been necessary in order to attempt to sign up more employees. In the third application it is clear that the unit had not, in absolute numbers, changed at all but the applicant remained deficient in membership support necessary to sustain the pre-hearing application notwithstanding having signed up more members because of an increase in lost cards. No bar was imposed for the reasons cited above. In this fourth application made two months after the previous application, it appears that over that period there had been an increase in the bargaining unit size (to approximately 194) and this contributed to a greater or lesser extent to the decision to withdraw, again notwithstanding filing additional membership from the previous application.

13. We consider that at this point it is necessary to exercise our discretion and impose a bar of 4 months from May 30, 1984. We have exercised our discretion on the basis that this is the third application for certification within a space of six months. On each of these applications the matter had progressed to the point where the respondent had prepared the necessary schedules containing the names of employees and a Labour Relations Officer's meeting had been convened or was to occur the day following the withdrawal. By allowing the applications to proceed this far three times, the applicant has effectively kept the respondent bound by the requirements of section 79(1) of the Labour Relations Act for most of the 6-month period and has kept the employees in virtually a continuous state of expectation that at some point they will be voting as to the applicant's status as their bargaining agent. From the employees' perspective this must appear strange indeed. Besides being strange, it keeps the employees in a state of upheaval. As for the respondent, aside from the disruptive effects of having the statutory freeze on terms and conditions of its employees pursuant to section 79 for a good part of 6 months, in these circumstances the respondent would also be unfairly kept in a state of constant preparation for the next possible application. The unit applied for is a "full-time unit" and includes classifications, the work of which could also be done on a part-time basis, i.e., could be involving less than 24 hours a week. The respondent's concern would be to ensure that when a subsequent application for certification is received, it can quickly determine by using the Board's usual tests whether a particular individual ought to be listed as part of the unit. There must come a point where some relief from all this upheaval occurs. The bar we have imposed is intended to provide this to the employees and to the respondent for a period of four months from May 30, 1984 since 4 months is soon to elapse and during this time the applicant has been barred from reapplying in any event.