[1989] OLRB Rep. January 64
2420-88-R; 2421-88-R Independent Canadian Transit Union, Applicant v. The Smiths Falls Community Hospital - North Unit, Respondent v. Canadian Union of Operating Engineers and General Workers, Intervener; Independent Canadian Transit Union, Applicant v. The Smiths Falls Community Hospital - South Unit, Respondent v. Canadian Union of Operating Engineers and General Workers, Intervener
BEFORE: Owen V. Gray, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.
DECISION OF THE BOARD; January 31, 1989
These are two applications for certification in which the applicant has requested that a pre-hearing representation vote be conducted. In accordance with the Board's usual practice, a Labour Relations Officer was appointed to meet with representatives of the applicant, respondent and intervener ("the participants") in each application to ascertain and discuss their positions with respect to the merits of the application and the conduct of any pre-hearing representation vote and report thereon to the Board.
The participants in Board File 2420-88-R agree that the respondent and intervener were parties to a collective agreement which expired December 31, 1988. They agree that the employees affected by this application are the employees who were covered by that collective agreement and that the voting constituency for the purpose of any pre-hearing representation vote should be as described in the scope clause of that collective agreement. It appears from the reply filed by the respondent that the employees in question are employed at 60 Cornelia Street West in Smiths Falls. On an examination of the records of the applicant and the records of the respondent, it appears that not less than thirty-five per cent of the employees of the respondent in that voting constituency were members of the applicant at the time the application was made. Accordingly, we direct that a pre-hearing representation vote be taken of the employees of the respondent in the following voting constituency:
All stationary engineers and persons primarily engaged as their helpers employed in the power house of the Hospital save and except chief engineers and persons above the rank of chief engineer
with the clarity note that "the power house in question is the power house which services the Hospital premises at 60 Cornelia Street West, Smiths Falls, Ontario". All those employed in the voting constituency on January 20, 1989 who are so employed on the date the vote is taken shall be eligible to vote. Voters shall be asked whether they wish to be represented by the applicant or by the intervener in their employment relations with the respondent.
- The participants in Board File 2421-88-R agree that the respondent and intervener were parties to a collective agreement which expired December 31, 1988. They agree that the employees affected by this application are the employees who were covered by that collective agreement and that the voting constituency for the purpose of any pre-hearing representation vote should be as described in the scope clause of that collective agreement. It appears from the reply filed by the respondent that the employees in question are employed at 35 Elmsley Street South in Smiths Falls. On an examination of the records of the applicant and the records of the respondent, it appears that not less than thirty-five per cent of the employees of the respondent in that voting constituency were members of the applicant at the time the application was made. Accordingly, we direct that a pre-hearing representation vote be taken of the employees of the respondent in the following voting constituency:
All stationary engineers and those persons primarily engaged as their helpers employed in the power house save and except chief engineer and those above the rank of chief engineer
with the clarity note that "the power house in question is the power house which services the Hospital premises at 35 Elmsley Street South, Smiths Falls, Ontario". All those employed in the voting constituency on January 20, 1989 who are so employed on the date the vote is taken shall be eligible to vote. Voters shall be asked whether they wish to be represented by the applicant or by the intervener in their employment relations with the respondent.
As the Independent Canadian Transit Union" has not been found to be a trade union in any previous Board decision, the ballot boxes in the representation votes in each of these two applications shall be sealed and the ballots cast shall not be counted unless and until the Board determines that the applicant is a "trade union" within the meaning of clause l(l)(p) of the Labour Relations Act ("the Act").
The persons who represented the respondent "The Smiths Falls Community Hospital -North Unit" in the participants' meeting with the Board's Labour Relations Officer in Board File 2420-88-R are the same persons who represented the respondent "The Smiths Falls Community Hospital - South Unit" in the participants' meeting with the Labour Relations Officer in Board File 2421-88-R. Those persons advised the Labour Relations Officer that the names "The Smiths Falls Community Hospital - North Unit" and "The Smiths Falls Community Hospital - South Unit" describe two separate and distinct legal entities. It has been the Board's experience that lay persons and even lawyers involved in employment matters are prone to the misconception that an operating division of a corporation is a legal entity separate and distinct from any other division of that corporation. For that reason, we are inclined to wonder whether the names of the respondents in these two files are not names under which a single legal entity operates separate divisions or departments at separate locations. If this is the case, the panel which deals with the merits of these applications after the pre-hearing representation votes have been conducted will no doubt wish to consider amending the description of the respondent employer and describe the appropriate bargaining unit in each application in accordance with the approach described in Beatrice Foods (Ontario) Limited, [1982] OLRB Rep. June 815. Accordingly, the participants should address this point in the submissions they file with respect to each application in response to the Notice of Returning Officer's Report in that application.
We note that one of the combination application for membership/receipt cards filed in connection with Board File 2421-88-R bears no indication of the amount, if any, which was paid to the trade union by the applicant for membership in respect of initiation fees or monthly dues of the trade union. This obviously raises a question about the adequacy of this document as evidence of membership as defined by clause 1(1)(l) of the Act. Less obvious, but potentially more serious, is the question this raises about the reliability of the Form 9 declaration filed by the applicant's National President. Paragraph 3 of that declaration reads as follows:
(Where the documentary evidence consists in part of receipts or other acknowledgments of the payment on account of dues or initiation fees.) On the basis of my personal knowledge and inquiries that I have made, I state that the persons whose names appear on the receipts or other acknowledgments of the payment on account of dues or initiation fees are the persons who actually collected the moneys paid on account of dues or initiation fees and that each member, on whose behalf a recent or an acknowledgment of payment is submitted has personally paid in money the amount shown thereon on his own behalf to the person whose name appears on his receipt or acknowledgment of payment as collector, EXCEPT IN THE FOLLOWING INSTANCES:
[emphasis added]
No exceptions are noted on the declaration. One is bound to ask how, if he did examine the cards and make the inquiries referred to in this paragraph, the declarant could have signed this declaration without first noting thereon, as an exception to paragraph 3, that one of the receipts to which it relates does not have any "amount shown thereon". As the answer may be that he did not do what is expected of a Form 9 declarant, this is a matter which will have to be addressed at a hearing after the vote is conducted: see Williams Machines Limited, [1972] OLRB Rep. Oct. 879; Maple Leaf Mills Limited, [1984] OLRB Rep. July 986 and [1984] OLRB Rep. Oct. 1474; and, Pebra Peterborough Inc., [1988] OLRB Rep. Jan. 76.
- The matter is referred to the Registrar.