Canadian Union of Public Employees v. Sudbury and District Health Unit
Ontario Labour Relations Board
Between: Canadian Union of Public Employees, Applicant v. Sudbury and District Health Unit, Responding Party
Before: Kevin Whitaker, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.
Decision of Kevin Whitaker, Vice-Chair, and Board Member H. Peacock
1This is an application for certification.
2The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995.
3Most of the membership evidence relied upon by the applicant consists of "combination" application for membership/membership cards which were signed more than six months but less than one year, prior to the application date. Four such cards relied upon by the applicant were signed more than one year prior to the application. The Board's practice in dealing with the timeliness of membership evidence was set out in Charterways Transportation Limited, [1979] OLRB Rep. Nov. 1068:
- The membership evidence filed by the applicant indicates that the last monetary payment to the applicant by any employee in the bargaining unit was made in January of 1979, that is more than six months but less than a year prior to the application date. The Board's long standing practice in such situations is to exercise its discretion under section 7(2) of the Act and direct the taking of a representation vote. See: W.N. Construction (Ottawa) Ltd., [1986] OLRB Rep. Sept. 645. We are not satisfied that the circumstances of this case warrant a departure from this practice.
4Given the statutory changes in the Act as a result of Bill 7 and the Board's practice, in our view the Board may properly have regard to membership evidence in the form of "combination" cards which were signed between six months and one year prior to the date of application.
5It appears to the Board on an examination of the evidence before it, without considering those "combination" cards relied upon by the applicant which were signed more than one year prior to the application date, that not less than forty per cent of the individuals in the bargaining unit proposed in the application for certification were members of the union at the time the application was made. Having regard to our findings in this respect, it is not necessary to determine if the applicant could, in these circumstances, rely upon the "combination" cards signed more than one year prior to the application date.
6The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of the Sudbury and District Health Unit employed in Home Care, save and except Home Care Supervisor, persons above the rank of Home Care Supervisor, and persons for whom a trade union held bargaining rights on the date of application.
7The vote will be held on Friday, January 31, 1997. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
8All individuals who had an employment relationship with the responding party in the voting constituency on January 24, 1997, the certification application filing date, are eligible to vote. Employees having an employment relationship on January 24, 1997, the certification application filing date, include employees who were not at work on that date, so long as there is a reasonable expectation of their return to employment.
9There is a dispute between the parties as to whether or not employees who are employed for less than twenty-four (24) hours per week, or as students employed during the school vacation period, should be included in the bargaining unit. If any individual holding such a position wishes to cast a ballot, the individual shall identify himself or herself as occupying a disputed position and such individual shall then be entitled to cast a ballot. Any ballot cast by such an individual shall be segregated and not counted until the Board so orders or the parties agree.
10Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
11The responding party is directed to post copies of this decision and of the "Notice of Vote and of Hearing" adjacent to each of the posted copies of the "Notice to Employees of Application for Certification". These copies must remain posted for 30 days.
12Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for certification, including any matters relating to the representation vote, must file a detailed statement of representations with the Board and deliver it to the other parties, so that it is received by the Board within seven days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken.
13The matter is referred to the Registrar.
Decision of Board Member J. A. Rundle
I dissent. I would have dealt with the application in the manner described in my dissent in the Corporation of the City of Toronto, [1996] OLRB Rep. July/Aug. 552. I reserve my decision on the issue of the timeliness of the membership evidence in this case.