[1996] OLRB Rep. November/December 1008
2137-96-R; 2371-96-R Practical Nurses Federation of Ontario, Applicant v. Saint Elizabeth Health Care - Durham Region, Responding Party v. Ontario Nurses' Association, Intervenor; Ontario Nurses' Association, Applicant v. Saint Elizabeth Health Care - Durham Region, Responding Party v. Practical Nurses Federation of Ontario, Intervenor
BEFORE: Gail Misra, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.
APPEARANCES: Denis W Ellickson and William Sly for Practical Nurses Federation of Ontario; Nancy Hawkes, Peter Israel and C. Andree for Saint Elizabeth Health Care - Durham Region; Risa Pancer and Jim Fraser for Ontario Nurses' Association.
DECISION OF VICE-CHAIR GAIL MISRA AND BOARD MEMBER D. A. PATTERSON; December 5. 1996
Board File No. 2137-96-R is an application for certification, filed on October 22, 1996, wherein the Practical Nurses Federation of Ontario (the "Federation") has applied to represent all Registered and Graduate practical nurses (referred to together as "RPN's") employed in a nursing capacity by Saint Elizabeth Health Care - Durham Region ("St. Elizabeth Health Care"), save and except supervisors, persons above the rank of supervisors, and office and clerical staff. Board File No. 237l-96-R is an application for certification filed on November 7, 1996 by the Ontario Nurses Association ("ONA") wherein that union seeks to represent all employees of St. Elizabeth Health Care, except for Program Directors, persons above the rank of Program Director, Registered practical nurses, Graduate practical nurses, and homemakers.
At the outset of the hearing ONA requested and was granted leave to intervene in Board File No. 2137-96-R. ONA is therefore added to the style of cause to reflect its intervenor status.
Counsel for the responding party requested that the Board consolidate the two certification files as he felt it made no sense to have to go ahead with each of the applications separately. ONA was prepared to have the two matters joined. Counsel for the Federation however took a different position as he was of the view there were no issues in dispute between the responding party and the Federation, so there was no purpose served by consolidating the files.
After considering the parties' submissions, the Board ruled orally that it would hear the two applications together.
Counsel for the Federation then made his preliminary motion that St. Elizabeth Health Care should not be permitted to resile from its response filed in Board File No. 2137-96-R, and to change the bargaining unit description to what it had outlined in its letter to the Board of October 29, 1996.
The basic facts concerning this matter are not in dispute. On October 22, 1996 the Federation filed an application for certification to represent the RPN's and delivered to the responding party a copy of the application, the Board's Rules of Procedure, and the requisite forms. On October 24, 1996 a response was filed on behalf of St. Elizabeth Health Care indicating it believed the appropriate bargaining unit would consist of all Registered practical nurses and graduate practical nurses employed in a visiting and shift nursing capacity, save and except Supervisors, persons above the rank of Supervisors, office and clerical staff. While the Federation believed there were 15 persons in its proposed bargaining unit, the responding party believed there were 17 persons in its respective bargaining unit.
By a decision dated October 28, 1996 the Board (panel somewhat differently constituted) ordered a vote be held in a voting constituency which mirrored the bargaining unit proposed by the applicant Federation. The Board noted that there was a dispute about "whether or not employees who would otherwise fall within the voting constituency described" but who did not work in a "visiting" or "shift" capacity should be included in the bargaining unit. The Board directed that any individual falling into those categories who wished to vote should be entitled to cast a ballot. Thus, any employee who may have come within the responding party's proposed bargaining unit would also have had an opportunity to cast a ballot. The vote was to be held on October 30, 1996.
On October 29, 1996 the Board received correspondence from the responding party indicating it had changed its position and was now seeking a unit composed of all employees employed in a nursing capacity, save and except supervisors, persons above the rank of supervisors, office and clerical staff. The Board (a second panel, somewhat differently constituted) issued a decision noting that the responding party was now seeking to expand its proposed bargaining unit. The Board indicated that the vote arrangements had already been made and that given the time at which the request was being made, and the nature of the requested change, the vote was to proceed as directed. The issue of the new proposed bargaining unit was to be dealt with at a hearing following the vote.
On October 30, 1996 the vote was held. Twelve employees voted, and of those who voted, 11 voted in favour of the Federation.
It is argued by the Federation that, after filing its response in a timely fashion, the responding party should not be permitted to change its position so fundamentally. Relying on section 7(14) of the Labour Relations Act, 1995, and Rule 43v of the Board's Rules of Procedure, the Federation argues that an employer is not required to file a response to a union's proposed bargaining unit description. However, if it chooses to do so, it is argued on the basis of the legislative provision and the rule, then it "shall" do so within two days alter the day on which the employer receives the application for certification. The Federation contends that the responding party to this application filed its response in a timely fashion, the Board considered that response, and the Board ordered the vote. It was only alter that point that the responding party was seeking to change its position and requesting