Ann Gratton v. Ontario Nurses' Association, 1991 CanLII 6093

[1991] OLRB Rep. March 397

2386-90-R Ann Gratton, Applicant v. Ontario Nurses' Association, Respondent v. Sidbrook Private Hospital, Intervener

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members G. 0. Shamanski and B. L. Arm­Strong.

APPEARANCES: C. J. Abbass and Ann Gratton for the applicant; Loretta Mikus and Jan Davidson for the respondent; Oscar Sala and Ken Crossfield for the intervener.

DECISION OF LOUISA M. DAVIE, VICE-CHAIR AND BOARD MEMBER BROMLEY ARM­STRONG: March 6, 1991

1. This matter came on for hearing before this panel of the Board on March 6, 1991. At that time a majority of the Board, Mr. Shamanski dissenting, rendered the following oral ruling:

The issue to be resolved in this instance is whether the segregated ballot of Ms. Ford and Ms. Gibson ought to be counted. Ms. Ford and Ms. Gibson were discharged from their employment several months before this application for termination was filed. The employer asserts that their discharge was for cause. Ms. Ford and Ms. Gibson have grieved their discharge and the matter is to be arbitrated. It would appear however, that their arbitration hearing is unlikely to occur before December 1991 with the decision to follow sometime thereafter.

The termination application filed pursuant to section 57 of the Act was filed on December 10, 1990. By decision of the Board dated January 7, 1991, a vote was ordered to be held. That vote was conducted on January 24, 1991.

In view of the non-segregated ballots that have already been counted, the segregated ballots can and will have a direct impact on the ultimate disposition of this application.

Counsel on behalf of the applicant asserts that the persons whose ballots have been segregated are not employees and their ballots ought not to he counted. Alternatively, he asserts that, in light of all of the circumstances (including the factor of a spoiled ballot) the Board ought to con­duct a new vote. To address the concerns of the trade union with respect to the possibility of gerrymandering and potential abuses caused by ordering a new vote (as well as problems caused by the delay in taking a new vote), he submits the Board ought to revote the same constituency. Counsel for the employer (intervener) supports these submissions.

Counsel on behalf of the Ontario Nurses Association submits that the outcome of this proceed­ing must await the outcome of the arbitration proceedings. In support, counsel refers to Don Mills Foundation for Senior Citizens Inc., [1984] OLRB Rep. April 586.

We are concerned about the delay which will result if the outcome of this application must await the outcome of the arbitration proceedings (which will not take place until at least 1 year after this application was filed). The adage of labour relations delayed is labour relations denied springs readily to mind.

Nonetheless we are equally concerned that the ultimate disposition of this application reflect the true wishes of the employees who will be affected by it. In that sense, the outcome should not depend on how persons who were not employees at the relevant time voted. Conversely, the outcome should not ignore the wishes of those employees who continued to have a legitimate interest and connection with the bargaining unit but who were not at work at the relevant time because they had been discharged without just cause and may be reinstated to employment (so that they would have been at work and able to vote but for the employer's actions in violation of the collective agreement.)

In all of the circumstances and for the reasons enunciated in Don Mills Foundation for Senior Citizens Inc., supra, we have determined that the outcome of this matter must await the out­come of the arbitration hearing.

The parties are directed to advise the Registrar when the arbitration award is released. At that time they must also advise the Board of their position with respect to the disposition of this application, including any request to reschedule this matter for hearing. The parties are directed to make their submissions to the Board within thirty days of the release of the arbitration award.

DECISION OF BOARD MEMBER G. O. SHAMANSKI; March 28, 1991

1. I am of the opinion that Ms. Ford and Ms. Gibson's ballots ought not be considered for the purpose of ascertaining the vote count in this application for termination. Both these individu­als were discharged by the company some months before this application was filed and for all intent and purpose are not entitled to cast a ballot.

2. Albeit no evidence was presented at the hearing either one way or the other whether the terminations of Ford and Gibson necessitated the hiring of placements. We can with a degree of safety assume that replacements were hired considering the nature of services provided by Sid­brook Private Hospital for its clients.

3. It would therefore seem to me that the replacements would qualify to cast a ballot at the time of the vote and not Ford or Gibson irrespective of whether their case is going to arbitration or not.

4. It further seems to me that this is a classical case of "labour relations delayed is labour relations denied". In conclusion I would have directed the disclosure of the vote results and dis­carded the segregated ballots of Ford and Gibson.