Ontario Labour Relations Board
[1984] OLRB Rep. April 586
2805-83-R David Tiburcio, Applicant, v. Service Employees Union, Local 204, Respondent, v. Don Mills Foundation For Senior Citizens Inc., Intervener.
BEFORE: Richard M. Brown, Vice-Chairman, and Board Members P. Grasso and F. C. Burnet.
APPEARANCES: David Tiburcio and Fortiny Pavlakis for the applicant; H. Goldblatt, E. Poskanzer, E. Laliberte and D. Anderson for the respondent; Michael Gordon and Jean Joy for the intervener
DECISION OF THE BOARD; April 19, 1984
This is an application under section 57(2) of the Labour Relations Act to terminate bargaining rights.
The respondent is currently the bargaining agent for a unit comprised of all employees of the Don Mills Foundation For Senior Citizens, Inc. at Thompson House Home For The Aged in the City of North York, save and except registered nurses, physiotherapists, occupational therapists, supervisors, persons above the rank of supervisor, office staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period. The application (which was filed on March 1, 1984) is timely; the applicant is an employee in the bargaining unit.
Four of the seven employees now at work signed the petition submitted by the applicant. The only matter in dispute is the standing of thirteen persons whose employment was terminated in March of 1983 when the employer subcontracted the job functions previously performed by them. The union grieved the subcontracting and the grievance was the subject of a lengthy hearing before a board of arbitration; the award has not been handed down at the date of writing.
Has the applicant met the forty-five per cent test laid down in section 57(3)?
Upon an application under subsection (1) and (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.
The union contended the answer was no if the grievance succeeded and yes if it failed; in short, a definite answer must await the arbitration award. The employer urged us to apply the 30/30 rule. As a general rule, people not at work on the day an application is filed are viewed as employees on that date if, and only if, they worked during the thirty day period preceding the application and worked (or are expected to work) during the thirty days following the application. This rule applies to those absent by reason of illness, vacation or layoff in accordance with a collective agreement. Under the 30/30 rule, the individuals in question would be excluded from the count, regardless of the outcome of the arbitration proceedings.
- The people terminated by the employer in March of 1983 ought to be treated as employees on the date the application was made if they are reinstated by the arbitration board. We rest this conclusion upon section 1(2):
For the purposes of this Act, no person shall be deemed to have ceased to be an employee by reason only of his ceasing to work for his employer as the result of a lock-out or strike or by reason only of his being dismissed by his employer contrary to this Act or to a collective agreement.
This section is most often applied in the context of an unfair labour practice discharge. When a person is fired prior to an application for certification and a trade union alleges an anti-union motive, the Board adjudicates the discharge complaint; if it succeeds, the individual is treated as an employee on the date of the application, by virtue of section 1(2). In other words, the 30/30 rule is not applied. See Otis Starr Limited, [1967] OLRB Rep. Mar. 965; Modern Cabinet Industries of Ottawa Limited, [1970] OLRB Rep. Apr. 39; and Drummond McCall & Co., [1976] OLRB Rep. Dec. 835. In this setting, to exclude the discharged employee from the count would be to allow the employer to rob a trade union and its supporters of their entitlement under the Act — either a vote or certification without a vote, depending upon the circumstances — by engaging in illegal conduct. This case at hand is analogous; to ignore the terminated employees would be to deprive them of their right to oppose the holding of a representation election.
- The Registrar is directed to relist this matter for hearing when the arbitration award is released.