Ontario Nurses' Association v. Glazier Medical Centre

[1994] OLRB Rep. March 249

3780-93-R Ontario Nurses' Association, Applicant v. Glazier Medical Centre, Responding Party

BEFORE: Gail Misra, Vice-Chair, and Board Members R. W. Pirrie and J. Redshaw.

DECISION OF THE BOARD; March 22, 1994

1. This is an application for certification filed on February 3, 1994. A response to the application was filed on February 14, 1994.

2. Following its normal procedure, the Board contacted the parties to canvass their respec­tive positions regarding all issues arising out of the case.

3. On February 23, 1994, a teleconference was held between a Labour Relations Officer of the Board, counsel for the responding party and a representative of the applicant. The only matter which counsel for the responding party wished to clarify at that juncture was the legal identity of the responding party. The applicant took no position with respect to the responding party's legal identity. It is the position of the applicant that as a result of the parties' agreement on various issues, outlined later in this decision, a Labour Relations Officer meeting set for March 2,1994, and a hearing into this application scheduled for March 7, 1994, were waived. The responding party takes the opposite position.

4. On February 28, 1994, the Board received correspondence from another law firm indi­cating it now represented the responding party, wished to file additional materials, and intended to attend the Labour Relations Officer meeting on March 2, 1994, and the hearing scheduled for March 7, 1994.

5. Later on February 28, 1994, the Board received submissions from counsel for the responding party indicating that the responding party was requesting that the Board exercise its discretion under section 6(1) of the Labour Relations Act and find the appropriate bargaining unit to be one other than that which had been agreed upon by the parties on February 23, 1994. A request was also made to amend the Response and to extend the terminal date to present the new filings.

6. The Board solicited further submissions from the parties and is now prepared to render its decision.

7. There is no contention in the responding party's submissions that agreement was not reached on the bargaining unit description or the list and there is no suggestion that the count was not released on the basis of such agreements. The responding party relies on the facts that the proper name of the employer had not been ascertained and that the Waiver of Hearing, Form A-5, had not been submitted, for the proposition that the responding party had not agreed to waive its right to a hearing.

8. The applicant's submission is that the parties had agreed to the bargaining unit descrip­tion during the teleconference on February 23, 1994, and that the count was then released. The only issue of concern to the responding party's counsel was the legal identity of the responding party. The applicant understood the employer's counsel to have waived the right to a hearing and understood further that the applicant was in a certifiable position.

9. The Board finds that on February 23, 1994, the applicant agreed to the responding party's bargaining unit description and the list of employees was agreed upon without any chal­lenges being made by either side. In accordance with Board practice, the Labour Relations Officer released the count to the parties and the applicant appeared to be in a certifiable position.

10. As outlined in Santa Maria Foods, [1981] OLRB Rep. Nov. 1618, the Board's Proce­dures and Rules for the certification process are set precisely so as to avoid the mischief of either party gerrymandering the employee list or the structure of the bargaining unit to avoid or favour certification. In that case the Board went on to say as follows:

8. At the outset of the hearing the Board will generally allow the employer to amend the lists filed to reflect any new information not previously available or to correct any error. During the hearing the Board does not announce the count of employees or any union membership until the description of the bargaining unit is settled. Similarly it does not announce the membership count until the count of employees in the unit is determined, subject, of course, to such out­standing challenges to the list as may have been made to that point in the hearing. These are rules well known to the parties and articulated in the Board's jurisprudence. (See, Gwell Investments Ltd., [1971] OLRB Rep. Oct. 675; The Corporation of the Township of Kingston, [1975] OLRB Rep. Apr. 370; Inter City Food Services Inc., [1976] OLRB Rep. July 388; Greater Wind­sor Investments Ltd. Windsor Nursing Home, [1976] OLRB Rep. Sept. 515). Without these gen­eral rules certification hearings would be endless meanderings without map or compass, each turn in the journey being dictated by changing perceptions of the parties as to what best serves their own interests. That is why, absent extraordinary circumstances, the Board does not enter­tain submissions on the structure of [the] bargaining unit or the list of employees in the unit after the point in the hearing when the count has been given.

11. Since 1990 the Board has implemented some changes to its practices with respect to cer­tification applications in an attempt to protect valuable hearing time and to minimize litigation. The Board's "waiver" process was outlined by Chair Mitchnick, as he then was, in Cor Jesu Re-e­ducation Centre of Timmins Inc., [1992] OLRB Rep. March 298, an excerpt of which follows:

The standard way in which the Board addresses an application for certification, whether it be, as was common in the past, by a panel at a hearing, or as has become more common recently, by an Officer at a meeting, is to begin with a discussion of the bargaining-unit "description". Once the parties' positions have been identified in that regard, the inquiry moves on to a review and discussion of the Employee List. At that point a party is not permitted to "resile" from positions previously arrived at with respect to the description of the bargaining unit, except to the extent that such alterations may properly be attributed to a dispute becoming identified only as a result of disclosure for the first time of the Employee List. Once again see, for example, Santa Maria Foods, [1981] OLRB Rep. Nov. 1618, as recently explained and confirmed by the Board in Fort Erie Duty-Free Shoppe Inc., [1991] OLRB Rep. Nov. 1268. Once the bargaining-unit descrip­tion and Employee List have both been dealt with, the process goes on to deal with the mem­bership evidence filed by the applicant in support of its application, in most cases culminating in an identification of the "count" (i.e. percentage level of support), or "appearance" of the count (the potential results of the application, depending on how the issues remaining in dispute fall to be resolved). And at that stage the employer is also granted access to the content of the appli­cant's Form 9 Declaration, including the description of any "irregularities" disclosed therein.

12. In the circumstances of this case, the panel is not persuaded that the responding party ought to be permitted to resile from its agreement on the structure of the bargaining unit. In reach­ing our decision, the panel notes that it was the responding party's description of the bargaining unit which the applicant agreed to on February 23, 1994. There are no extraordinary circumstances in this case to cause the Board to depart from its general rule.

13. If the responding party wishes to request a hearing on the question of the legal identity of the employer and should the applicant not be in agreement, then the Board may consider such a request.

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

15. In 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.

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

17. The Board is satisfied, on the basis of all the evidence before it, that more than fifty-five per cent of the employees of the responding party in the bargaining unit on February 3, 1994, the certification application date, had applied to become members of the applicant on or before that date.

18. The responding party, in its submissions of February 28, 1994 and March 3, 1994 requested that the Board exercise its discretion under section 6(1) of the Labour Relations Act to amend the bargaining unit description agreed upon by the parties to one which the responding party now claims to be a more appropriate bargaining unit. While the Board has the discretion to determine the unit of employees that is appropriate for collective bargaining, where there is an agreement between the parties, such agreement is not tampered with lightly. We find that the cir­cumstances in this case provide no compelling reasons for exercising our discretion to change a bar­gaining unit which was agreed to by the parties and which is not contrary to any public policy.

19. Having regard to the agreement of the parties, the Board further finds that:

all registered and graduate nurses employed in a nursing capacity by Glazier Medical Centre in the City of Oshawa, save and except supervisors and persons above the rank of supervisor.

constitute a unit of employees of the responding party appropriate for collective bargaining.

20. On February 23, 1994, counsel for the responding party had undertaken to provide the Board with the legal identity of the responding party, but to date the Board has not received this information. The responding party is hereby directed to provide the Board with clarification of its legal identity within seven days of the release of this decision. Should the Board not receive this information by such time, a certificate will issue in the name of the responding party as indicated in the Response dated February 14, 1994.