[1988] OLRB Rep. February 213
2930-87-R Glass, Pottery, Plastics & Allied Workers International Union, Applicant v. VS Services Ltd., Respondent
BEFORE: Owen V. Gray, Vice-Chair, and Board Members G. 0. Shamanski and B. L. Armstrong.
DECISION OF THE BOARD; February 22, 1988
The applicant has requested that the Board conduct a pre-hearing representation vote in connection with this application for certification. The respondent says the Board has no jurisdiction to do so unless and until it determines who is the employer of the persons whom the applicant claims to have organized.
The applicant says the respondent is the employer of persons who perform food service work at Hotel Dieu Hospital in Cornwall, Ontario. The respondent says that while it manages the hospital's food service and dietary department pursuant to a management contract, it does not employ the dietary staff in question: they are employees of the hospital.
The question for us is not who is right - that can only be determined after a hearing. The question is whether we can conduct a vote among the persons in question before holding that hearing.
The object of the pre-hearing vote procedure is to expeditiously record the wishes of those whose wishes may be relevant to the disposition of a certification application, and to do so before adjudicating any issue in respect of which a hearing may be necessary. This theme has been elaborated on many occasions. This panel's decision in Ontario Hydro, [1987] OLRB Rep. Dec. 1589 at paragraphs 2 to 5 is a recent example.
The notion that it must resolve the identity of the employer of persons before it can conduct a pre-hearing vote among them was specifically rejected by the Board in Sayvette Family Department Store Ltd., [1974] OLRB Rep. May 327. While it is not clear whether it was all (as here) or just some of the potential voters whose employment relationship with the respondent was at issue in that case, the applicable principles would be the same in either event. The Board is not required to resolve an issue of the sort raised by the respondent before conducting a vote; if it were otherwise, any request under section 9 of the Labour Relations Act for a pre-hearing vote could be frustrated by a respondent's bald denial that it employs anyone. While we do not suggest that this respondent raises the issue otherwise than in perfect good faith, the principles applied at this stage must be the same whether the issue is serious or frivolous, since without a hearing no such distinction could be drawn.
Without prejudice to its position that it is not the employer of anyone who would fall within such units, the respondent agrees with the applicant that (if it were the employer of such persons) the following constitute units of employees appropriate for collective bargaining:
a) Bargaining Unit #1
All employees of the Respondent at Hotel Dieu Hospital, Cornwall, save and except supervisors, persons above the rank of supervisor, clerical and office staff, persons regularly employed for not more than twenty-four (24) hours per week, and students employed during the school vacation period.
b) Bargaining Unit #2
All employees of the Respondent at Hotel Dieu Hospital, Cornwall regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except supervisors, persons above the rank of supervisor, clerical and office staff
In view of that agreement, we determine that those would constitute the voting constituencies for the purposes of any pre-hearing vote or votes herein.
- The parties have identified the persons who would have been within those units on the application date, on the applicant's view of the issue as to who employs the dietary workers at the Hotel Dieu Hospital. Of course, the respondent takes the view that there were no such persons on the relevant date. This is merely a rather extreme example of the problem dealt with in The Board of Education for the City of North York, [1984] OLRB Rep. July 989, where the parties were in substantial disagreement about the identity of those who were employed in a voting constituency on the relevant date. The Board had to determine how to assess whether there was the "appearance" of membership in sufficient quantity to satisfy the test prescribed in subsection 9(2) of the Act. The Board concluded (at paragraph 7) that:
Where determination of the actual prerequisite level of support depends on a resolution of contested factual or legal issues, the Board assesses the appearance of support on the assumption that the union's position on the matters in dispute is correct. A pre-hearing vote is normally directed if, on that assumption, the requisite appearance of support is present. The contested issues are dealt with after the vote is held. However; the results of a pre-hearing vote are of no effect unless it is later demonstrated that no less than 35 per cent of the persons ultimately found to have been employees in the appropriate bargaining unit on the application date were members of the applicant on that date. If that demonstration depends on contested issues being later resolved in the applicant's favour, the Board will normally defer counting any ballots until it can resolve those issues which bear on the propriety of counting all, or any, of the ballots.
We adopt those conclusions.
The applicant has the requisite appearance of membership support among those who, on the applicant's view, fell within the voting constituency described in sub-paragraph 6(a) above, at the relevant time, but not among those in the voting constituency described in subparagraph 6(b).
Accordingly, the Board directs that a vote be conducted among those in the voting constituency described in subparagraph 6(a) above. All those said to have been employed in that voting constituency on February 10, 1988 who are also said to be so employed on the date the vote is taken will be eligible to vote.
Voters will be asked whether or not they wish to be represented by the applicant in their employment relations with the respondent. We note the applicant's undertaking not to rely on the form of the ballot in support of an argument that the persons in question regard the respondent as their employer.
The ballot box shall be sealed and the ballots not counted unless on agreement of the applicant and respondent or by further order of the Board.
The following shall appear in the Board's Notices of Taking of Vote posted in connection with the vote:
PLEASE NOTE: The Ontario Labour Relations Board has not yet decided whether the respondent VS SERVICES LTD. is the employer of anyone who works at Hotel Dieu Hospital in Cornwall, Ontario. That question is currently in dispute. If it remains necessary to do so the Ontario Labour Relations Board will decide that question after this vote is conducted.
- The matter is referred to the Registrar.