Service Employees Union International Union, Local 532 v. Guelph Rest Home Incorporated, 1994 CanLII 9791

Ontario Labour Relations Board

File No.: 0048-94-R Date: May 9, 1994 Citation: [1994] OLRB Rep. May 556

Between: Service Employees Union International Union, Local 532 Affiliated with the A.F. of L., C.I.O., C.L.C., Applicant v. Guelph Rest Home Incorporated c.o.b. as Heritage House Retirement Home, Responding Party

Before: Pamela Chapman, Vice-Chair, and Board Members W. A. Correll and K. Davies.

Decision of the Board

1This is an application for certification filed on April 7,1994. A response to the applica­tion was filed on April 14, 1994.

2Following its normal procedure, the Board contacted the parties to canvass their respec­tive positions regarding all issues arising out of the case. After telephone conversations with each of the parties on April 21, 1994, the Labour Relations Officer assigned to the case reported that the parties had reached agreement on all issues in dispute, including the description of the bargain­ing unit, and had further agreed to waive their right to a formal hearing. The same day, representa­tives of both the applicant and the responding party signed a list of the employees indicating that it was the agreed list for the purposes of the count. That list included full-time, part-time and student employees of the responding party. In accordance with Board practice, the Labour Relations Offi­cer then released the count to the parties and advised them that the applicant appeared to be in a certifiable position.

3On April 27, 1994, one of the owners of the responding party, who was not the repre­sentative involved in discussions with the Labour Relations Officer, wrote to the Board indicating that he wished to appear at a hearing before the Board, to make submissions concerning the appropriateness of the bargaining unit proposed by the applicant. He took the position in that cor­respondence, and before the Board, that his representative, the on-site manager, had not agreed to the description proposed by the applicant, nor to a waiver of a formal hearing, in the discussions with the Officer.

4The manager involved in the waiver process did not appear at the hearing of this mat­ter, so we did not hear evidence of her recollection of the discussions with the Officer. However, the owner of the responding party submitted at the hearing that in effect a misunderstanding had occurred. He stated that the manager had not understood that by signing the list for the count she was agreeing to the unit description, and that she believed that she had not otherwise expressed any agreement to the applicant's proposed unit. He noted that the response filed by the responding party proposed a bargaining unit excluding part-time employees and students, and stated that the responding party had at all times intended to maintain this position as to the appropriate unit. The owner of the responding party did, however, acknowledge that the count was released to the man­ager after she agreed to the list of employees, and that she was then advised that the applicant was in a certifiable position.

5It was the position of the applicant that the parties reached agreement on all issues relating to the application through discussions with the Labour Relations Officer, and that as a result the count was announced and both the meeting with the Officer and the hearing were waived.

6As this Board has said in numerous decisions, the rules and procedures for the certifica­tion process have been established precisely in order to prevent the mischief of either party ger­rymandering the employee list or bargaining unit description so as to avoid or favour certification. As such, the Board does not announce the count of employees and union membership until the bargaining unit description is settled, either through a decision of the Board or by the agreement of the parties. For the same reason, parties are not permitted, in other than exceptional circum­stances, to resile from an agreement on the description of the bargaining unit after the count has been released. (See Santa Maria Foods, [1981] OLRB Rep. Nov. 1618; Fort Erie Duty-Free Shoppe Inc., [1991] OLRB Rep. Nov. 1268; Cor Jesu Re-education Centre of Timmins Inc., 119921 OLRB Rep. March 298; Glazier Medical Centre, Board File No.3780-93-R, unreported, decision released March 22, 1994 [now reported at [1994] OLRB Rep. Mar. 249]).

7In this case the responding party argues essentially that no agreement was reached on the description of the bargaining unit, and that as such they do not seek to resile, but only to take a position consistent with that taken in their response to the application. Given the report filed by the officer, the signatures of representatives of both parties on the employee list, the fact that the count was released, and in the absence of evidence from the manager who now asserts that she did not agree with the applicant's proposed unit, we would be inclined to find that an agreement on the appropriate bargaining unit was reached. As no exceptional circumstances have been advanced that would justify permitting the responding party to resile from this agreement, this would nor­mally result in a determination that the unit agreed to is the appropriate one for collective bargain­ing purposes.

8In the circumstances of this case, however, it is unnecessary for us to determine conclu­sively what was agreed to in the course of discussions with the officer, as we are satisfied that in any event the unit applied for is an appropriate one, in contrast to the unit or units sought by the responding party. Section 6(2.1) of the Act provides that:

6.-(2. 1) A bargaining unit consisting of full-time employees and part-time employees shall be deemed by the Board to be a unit of employees appropriate for collective bargaining.

9It is the position of the responding party that both part-time employees and students should be excluded from the bargaining unit. The students employed by the responding party are in fact part-time employees as that term has been interpreted by the Board, as they work less than 24 hours per week during the school year rather than more than 24 hours during the school vaca­tion period; indeed, each of the students in question in this application worked during the week immediately prior to this application for certification. Thus, the only objection raised by the responding party to the unit proposed by the applicant is the inclusion of part-time employees together with full-time employees in a single unit. Given the language of section 6 (2.1) of the Act, this position is simply untenable, and we find that the unit proposed by the applicant is the appro­priate unit for collective bargaining purposes pursuant to section 6 of the Act.

10The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.

11The Board further finds that all employees of Guelph Rest Home Incorporated c.o.b. as Heritage House Retirement Home in the City of Guelph, save and except supervisors, persons above the rank of supervisor, registered nursing staff, program Director and office and clerical staff, constitute a unit of employees of the responding party appropriate for collective bargaining.

12In accordance with the Rules of Procedure respecting applications for certification, the named employer has filed a list of employees in the bargaining unit, together with sample signa­tures for the employees on that list.

13In support of its application for certification, the applicant union filed documentary evi­dence of membership in the form of cards. The cards are signed by each employee concerned and indicate a date within the six-month period immediately preceding the application date. The mem­bership evidence is supported by a duly completed Declaration Verifying Membership Evidence.

14The Board is satisfied on the basis of all of the evidence before it, that more than fifty-five per cent of the employees of the responding party in the bargaining unit on April 7,1994, the certification application date, had applied to become members of the applicant on or before that date.

15A certificate will issue to the applicant.

16At the meeting with the Labour Relations Officer, the parties agreed that the style of cause in this matter should be amended to reflect the correct name of the responding party: "Guelph Rest Home Incorporated c.o.b. as Heritage House Retirement Home". Subsequently, correspondence was received from of the owners of the responding party indicating that the name should be further amended to "Guelph Rest Home Partnership". It appears from this correspon­dence that Guelph Rest Home Incorporated is a general partner in the partnership. Thus, the part­nership is one step further removed from the business name with which employees and the commu­nity are familiar, that of "Heritage House Retirement Home". The Board is concerned in choosing an appropriate name in which to issue a certificate to identify a legal corporate entity and also to ensure that the name of the employer is one that its employees will recognize. For our purposes, then, we are satisfied that the appropriate name in which to issue the certificate in this matter is "Guelph Rest Home Incorporated c.o.b. as Heritage House Retirement Home".