Canadian Union of Public Employees v. Lapalme Nursing Home Ltd.

[1987] OLRB Rep. March 406

1498-86-R Canadian Union of Public Employees, Applicant, v. Lapalme Nursing Home Ltd., Respondent, v. Group of Employees, Objectors

BEFORE: Ken Petryshen, Vice-Chair, and Board Members F. W. Murray and R. R. Montague.

APPEARANCES: Helen O'Regan for the applicant; Larry Crossan and Lucette Lapalme for the respondent; Deanne Barber, Giselle Blanchard, Giselle Giroux and Philippe Quesnel for the objectors.

DECISION OF THE BOARD; March 2, 1987

1. By decision dated October 20, 1986, another panel of this Board directed that a representation vote be taken of the employees of the respondent in the following bargaining units:

Bargaining Unit #1

all employees of the respondent in Embrun save and except professional medical staff, registered, graduate and undergraduate nurses, graduate pharmacists, undergraduate pharmacists, graduate dieticians, student dieticians, occupational therapists, office and clerical employees, supervisors, persons above the rank of supervisor, persons employed for not more than twenty-four hours per week, and students employed during the school vacation period; and

Bargaining Unit #2

all employees of the respondent in Embrun employed for not more than twenty-four hours per week and students employed during the school vacation period, save and except professional medical staff, registered, graduate and undergraduate nurses, graduate pharmacists, undergraduate pharmacists, graduate dieticians, student dieticians, occupational therapists, office and clerical employees, supervisors and persons above such rank.

In ordering the representation vote, the Board made its normal direction concerning voter eligibility:

all employees of the respondent in the bargaining unit on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.

2. Pursuant to the Board's direction, a vote was conducted on December 12, 1986 on the respondent's premises at Embrun. The voters' list for bargaining unit #1 contained the names of 32 persons, 31 of whom cast ballots. The ballot of Deanne Barber was segregated and not counted on the agreement of the parties since the respondent took the position that Barber exercised managerial functions within the meaning of section 1(3)(b) of the Act. The voters' list for bargaining unit #2 contained the names of 47 persons, 46 of whom cast ballots. Subsequent to the taking of the representation vote, the ballots were counted on agreement of the parties. The difference in the number of ballots marked in the applicant's favour and the number of ballots marked against the applicant is four in bargaining unit #1 and one in bargaining unit #2. A notice to employees (Form 70) was posted advising employees of their right to make timely representations as to any matter relating to the representation vote.

3. On February 22, 1987, the Board received the following letter signed by five employees:

December 18, 1986

Ontario Labour Relations Board

400 University Avenue

Toronto, Ontario

M7A 1V4

Dear Sir:

We are employees of Lapalme Nursing Home in Embrun, Ontario.

On Friday, December 12, a vote was taken at the Nursing Home in order to see if the employees wanted to be represented by the Canadian Union of Public Employees. The board officer was Tim R. Parker.

A number of us are upset because we feel the vote was not representative of all of the employees for the following reasons.

1. Four employees are now considered full time and voted in the part-time. They are:

Joan Merkley

Raymond St. Pierre

Jacynth Daze

Lise Labelle

2. We have new employees who started shortly after the October 20th date and who feel they

should have been allowed to vote. They are:

Joanne Lewis

Linda Power

Julie Boulerice

Todd Dupuis

We feel another vote should be taken in order that a fairer result would be had which would include ALL staff.

If you would like we could take up a petition among the staff about having another vote - we are confident that more than 60% of the staff would like another vote. Due to the fact you must have a closing date of December 22 we felt pressed for time so did not take up a petition. However, if you would be so kind as to give us until January 9 we are certain many of the employees would be very grateful for a chance to vote again.

Thank you for your consideration in this matter,

Yours truly,

(5 signatures)

4. On January 16, 1986, the Board held a hearing for the purpose of entertaining the evidence and the representations of the parties with respect to the representation vote held on December 12, 1986. The parties were in agreement on the facts. Five employees who were employed in the part-time bargaining unit on the date the Board ordered the vote, who were on the part-time voters' list, and who voted in the part-time unit, were employed in the full-time unit on the date the representation vote was held. Between the date the vote was ordered and the date the vote was conducted, three persons left bargaining unit positions and four persons were hired into bargaining unit positions. Two persons were employed in the part-time unit as replacements for a temporary period which began prior to the date the vote was ordered and ended after the date the vote was held.

5. The representative of the objecting employees, Ms. Barber, submitted that the Board should direct the taking of new representation votes in both the full-time and part-time bargaining units. As a general proposition, Ms. Barber argued that due to the extent of the movement of employees from the part-time unit to the full-time unit, the number of persons who left or were hired in the bargaining units between the date the vote was directed and the date the vote was taken and the fact that two persons who voted were employed on a part-time basis for a temporary period, the vote held on December 12, 1986 was not representative of all of the employees. Specifically, Ms. Barber argued that:

(1) the two persons hired for a temporary period should not have been eligible to vote;

(2) the four persons who were hired after the vote was ordered and prior to the date the vote was held should have been given the opportunity to vote; and,

(3) the five persons who participated in the part-time unit vote but were employed in the full-time unit on the day of the vote should not have voted in the part-time unit and should have voted in the full-time unit.

Counsel for the respondent supported the positions taken by Ms. Barber. The applicant's representative argued that, in the circumstances, the Board should not direct the taking of new representation votes in either the full-time or part-time bargaining unit.

6. This is not the first occasion where the Board was confronted with the kind of issues raised in this case. The Board's practice concerning the manner in which it determines voter eligibility has been consistent for well over twenty years. In Canadian Westinghouse Company Limited, [1966] OLRB Rep. Sept. 372 at paragraph 6, the Board set forth its interpretation of its standard direction concerning voter eligibility:

The Board's standard direction for the taking of a representation vote, as quoted above, cites only two instances in which a person who was an employee in the bargaining unit on the date the vote was directed forfeits his eligibility to vote, namely, where he voluntarily terminates his employment or is discharged for cause before the date the vote is taken. The Board, however, has not attempted in its standard direction to define exhaustively all of the contingencies under which a person who was an employee in the bargaining unit when the vote was directed would cease to be eligible to vote. The Board has consistendy interpreted its direction to mean that a person who, between the date of the direction and the date of the vote, has ceased to be a member of the bargaining unit, is disqualified from participating in the vote, whether because of voluntary termination of employment, discharge for cause, indefinite lay-off in some circumstances, or transfer to a position out of the bargaining unit. Stated another way, the policy of the Board is that a person must be an employee in the bargaining unit both on the date the vote is directed and on the date of the taking of the vote in order to be eligible to cast a ballot...

[emphasis added]

7. In London District Crippled Children's Treatment Centre, [1980] OLRB Rep. Apr. 461, it was argued that a person who, prior to the vote, had given notice of an intention to terminate her employment effective on a date subsequent to the vote should not be eligible to vote. The Board had little difficulty in concluding that this person was entitled to vote and proceeded to deal with an argument that, in any event, the result of the vote should not be allowed to stand. The Board ultimately decided not to disturb the results of the vote. In arriving at this result, the Board canvassed a number of the Board's decisions concerning voter eligibility and made comments which are applicable to the circumstances of this case and worth reiterating:

8. Certification is the primary process in the Labour Relations Act. It is the means by which the wishes of employees for representation are transformed into the affirmative right of a union to bargain collectively on their behalf with their employer. Generally, apart from exceptional cases involving extreme unfair labour practices, certification is accomplished by an application of majoritarian principles. A union can be certified by demonstrating support in excess of 55% of the bargaining unit through membership cards. It can also be certified by obtaining a simple majority of the ballots cast in a representation vote. These are the two normal routes to certification under the Act. Both of these procedures require the application of percentages to a defined number of employees. Because employees may continuously come and go through hiring, lay-offs, leaves of absence, quitting and discharge, the Board has had to devise some general rules to apply in order to fix a clear and stable figure of employees in a given bargaining unit for the purposes of an application for certification.

9. There are a number of ready illustrations of those rules. The Board has devised, for example, a "terminal date" as a cut off point for assessing the number of membership cards filed by a union and statements in opposition to certification filed by employees. The Board refers to the date that an application is filed for assessing the number of employees in the bargaining unit. (See R. v. OLRB, Ex pane Hannigan, 1967 CanLII 205 (ON CA), [1967] 2 O.R. 469 (CA.)). And it has developed a "thirty day rule" to determine whether an employee absent on the date of application is to be counted within the bargaining unit for the purposes of the application (Amplifone Canada Ltd., [19671 OLRB Rep. Dec. 840). The Board has also evolved "a seven week rule" as a rule of thumb to assess which employees will be viewed as full-time and which as part-time for the purposes of an application. (Sydenham District Hospital, [1967] OLRB Rep. May 135). These are procedural constructs whose application may mean victory or defeat for either party in any particular application. If all of the lines established by these rules were to be redrawn on a case by case basis the certification process would come to a standstill. These established principles are known to the labour relations community and parties coming before the Board can plan on the basis of them. While none of the above rules are entirely inflexible, there is a substantial onus on any party who seeks to have the Board depart from them in a particular case. (Trenton Memorial Hospital, (19801 OLRB Rep. Jan. 805).

10. The line which the Board has traditionally drawn respecting the eligibility of employees to vote, namely that the employee be in the bargaining unit both on the date that the vote is ordered (or on the terminal date in a pre-hearing vote or as otherwise agreed by the parties) and on the date the vote is taken, is clear and well known through the Board's published decisions, its practice notes (see Practice Note No. 9, August 1964) and its layman's handbook. While originally the Board merely stated that employees in the bargaining unit would be entitled to vote (see e.g. The Borden Co. Ltd., (1946), 46 CLLC ¶16,461) it evolved the two-pronged eligibility rule to give greater clarity and certainty to voter's lists, as well as to eliminate the possibility of an employer influencing the outcome of a vote by hiring new employees. The Board's practice and the principles underlying it were well canvassed in J. McLeod & Sons Ltd., [1970] OLRB Rep. Feb. 1316.

11. In this case the respondent and the objecting employees invite the Board to adopt a different rule. They submit that if an employee has indicated an intention to leave the workplace he or she should not be permitted to influence the outcome of a representation vote. When pressed on the point, however, they are less than clear as to how that principle can be applied in any general way. Is an employee to be deprived of this franchise if, before a representation vote, he indicates an intention to leave his employment within three weeks of the vote? Or three months? Or six months? And is the result of a closely contested vote to be disturbed if an employee who voted is transferred, quits or is discharged within a day or two after the vote? The Board must obviously adhere to a rule that gives some certainty and finality to the granting of bargaining rights and which can be readily understood and applied by the parties.

12. The Board's past decisions give considerable guidance in the application of the rules regarding the eligibility of employees to vote in the selection of a bargaining agent. Employees on lay-off without a definite date of recall have been held ineligible to vote (Rix Athabasca Uranium Mines Limited, [1961] OLRB Rep. July 127). The Board has found that a person who was an employee in the bargaining unit on the date the vote was ordered and was promoted to acting foreman on the date the vote was taken was ineligible to cast a ballot, notwithstanding that he later returned to the bargaining unit (Success Display Limited, [1971] OLRB Rep. Oct. 636). An employee who was absent on Workmen's Compensation on the date the vote was ordered and on the date the vote was taken, but who had neither quit nor been terminated was found eligible to vote (Alex's Plumbing and Heating Limited, [1970] OLRB Rep. Feb. 1321). Where, on the other hand, an employee who was absent due to illness had been treated in all respects as terminated and had no real prospect of returning to work, the Board concluded that he was not eligible to vote (Canac Kitchens Ltd., [1978] OLRB Rep. Aug. 723).

13. The Board's rule respecting eligibility to vote has sought to strike a balance. On the one hand the Board recognizes the interest of employees with a stake in future collective bargaining having a controlling voice in the choice of a bargaining agent. On the other hand it faces the necessity of establishing a democratic process with some finality in situations where employees are subject to varying degrees of turnover. From the Board's earliest days employees were not removed from the voter's list unless they had left their employment before the taking of the vote. The only recorded exception to this appears to have been in wartime: under P.C. 1003, the Wartime Labour Relations Regulations, the Board's practice was to exclude from voting eligibility an employee who prior to the taking of the vote had obtained a separation notice pursuant to Selective Service regulations. An employee subject to that irrevocable step was viewed as no longer sufficiently interested in employment relations in the plant to be entitled to influence the outcome. (Packard Electric Co. Ltd. (1944), 46 CLLC ¶16,424). There appears to be no other recorded variation from the Board's rules.

14. The Board's voter eligibility rules are not intended and do not purport to achieve a standard of perfect decimal point democracy, assuming such a standard can ever be achieved. The rules seek nothing more than to establish a substantially representative group of employees with a minimum of employment continuity for the purposes of certification. Any deliberate attempt to manipulate the eligibility rules and temporarily "pack" the voting constituency to influence the outcome of the vote can be dealt with through the Board's remedial authority in unfair labour practices (see e.g. Custom Aggregates, [1978] OLRB Rep. Mar. 215). Any distortion in the selection process caused by a planned and bona fide substantial increase in the size of the bargaining unit in the near future can be accommodated by the application of the Board's build-up principles (Emil Frant 57 CLLC ¶18,057; McCord Corporation, [1965] OLRB Rep. June 203; Domco Foodservices Limited, [1980] OLRB Rep. Jan. 33). While the Board deals with these kinds of substantial changes in the bargaining unit, it cannot concern itself with the inevitable fact that some employees who are eligible to vote may have a more temporary or transitory interest in their job than others.

15. The Board has long recognized the right to vote of employees who are transitory, so long as they conform to the minimum requirement of the Board's two-pronged eligibility rule. If they are employed on the date the vote is ordered and continue to be employed to the date the vote is taken, they are entitled to vote. In J. McLeod & Sons, [1969] OLRB Rep. Dec. 1100, the Board confirmed the eligibility to vote of a group of employees who fell within the eligibility dates but who in fact had been hired temporarily. They were strikers from a nearby plant who expected to return to their normal employment at some indefinite future date. And in University of Toronto, [1974] OLRB Rep. May 267, the Board confirmed the right to vote of all teaching assistants and research assistants employed by the University even though the vote was conducted in May, at the end of the academic year, and a turnover rate of 25 per cent to 35 per cent of the bargaining unit was projected for the next academic year.

16. The selection of a bargaining agent under the Act cannot be conducted on the basis of an ongoing referendum geared to the daily, weekly or monthly changes in the people who make up a bargaining unit. But bargaining rights are not necessarily permanent, and the Act allows for shifts in the wishes of employees whether through the turnover of personnel or otherwise. Any changes in the sentiment of a majority of the employees about union representation over time can be dealt with through the provisions of the Act for the termination of bargaining rights.

17. In the circumstances of this case, the Board is satisfied that a representative group of employees participated in the vote in both the full-time and part-time bargaining units. The changes in personnel and the movement of persons from one bargaining unit to another are not significant when compared to the total number of persons employed in those bargaining units.

18. Although the Board's rules with respect to voter eligibility are not inflexible, there is a substantial onus on a party who seeks a departure from the Board's usual practice. On the facts before us, the Board is satisfied that it would be inappropriate to alter its normal rules. In applying the rules regarding the eligibility of employees to vote to the specific matters of concern raised by Ms. Barber, the Board finds as follows:

(1) the two employees who were hired for a temporary period were eligible to vote in the part-time bargaining unit. These two employees were employed in the part-time unit when the vote was ordered and when the vote was held. The fact that these employees were hired for a temporary period does not affect their eligibility to vote. (See, London District Crippled Children's Treatment Centre, supra, and J. McLeod & Sons, [1969] OLRB Rep. Dec. 1100);

(2) the four employees who were hired subsequent to the time when the Board ordered the vote were not eligible to vote. Although these employees were employed in a bargaining unit on the date the vote was held, they did not meet the first element of the two-pronged eligibility rule; and,

(3) the five employees who were employed in the part-time unit when the vote was ordered and were employed in the full-time unit when the vote was held were not eligible to vote in either the part-time or the full-time unit. These five employees were not entitled to vote in the part-time unit since they were not employed in the part-time unit when the vote was held. These employees should not have a role to play in the selection of a bargaining agent for the part-time employees when they have become strangers to the part-time unit. The five employees were not eligible to vote in the full-time unit since they were not employed in that unit when the vote was ordered'~ In essence, their position is no different from that of the four employees who were hired after the vote was ordered insofar as any connection they have to the full-time unit. The fact that the five employees were employed by the respondent when the vote was ordered is not persuasive. An office employee or a managerial employee who was transferred into the full-time unit after the vote was ordered also would not be eligible to vote. By agreeing to separate bargaining units for the full and part-time employees, the parties recognized, as

does the Board, that employees within each of these units have different collective bargaining interests. In our view, therefore, the fact that we are dealing here with the transfer of employees from the part-time to the full-time unit rather than a transfer from a sales or office unit to the full-time unit should not affect the application of the Board's normal rules regarding voter eligibility.

10. As a result of the above findings, the Board declines to disturb the result of the representation vote held for the full-time bargaining unit on December 12, 1986. Those persons who voted in the full-time unit were eligible to vote and no eligible voter was deprived of the opportunity to vote. On the taking of the representation vote directed by the Board more than fifty-five percent of the ballots cast were cast in favour of the applicant. Accordingly, a certificate will issue to the applicant for bargaining unit #1.

11. As a result of the above findings, the Board directs that another representation vote be held in the part-time bargaining unit. Five persons who were ineligible to vote in the part-time unit voted in that unit. It is clear from the results of the vote in the part-time unit that the outcome of the vote may have been different if the five persons had not voted. Although the trade union has not requested a new vote in the part-time unit, it did not request leave to withdraw its application for certification as it related to the part-time unit. In any event, the Board has an interest in ensuring that its votes are conducted in accordance with its rules.

12. A representation vote will be taken of the employees of the respondent in bargaining unit #2. All employees in bargaining unit #2 on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof 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 matter is referred to the Registrar.

15. Subsequent to the hearing, the Board received two letters signed by three persons who were transferred from the part-time unit to the full-time unit prior to the time the vote was held. The matters referred to in these letters are matters which Ms. Barber addressed at the hearing.