Health Care Council of Ontario (LIUNA) v. Sisters of Charity of Ottawa Hospital and Villa Marquerite
[1999] OLRB REP. MAY/JUNE 535
4196-97-R Health Care Council of Ontario (LIUNA), Applicant v. Sisters of Charity of Ottawa Hospital and Villa Marquerite, Responding Party v. Independent Canadian Transit Union, Local 9, Intervenor
Certification - Fraud - Representation Vote - Board conducting representation vote in connection with certification application brought by HCCO regarding hospital employees already represented by ICTU - Majority of employees casting ballots in favour of HCCO, but ICTU asking Board to dismiss application or order new vote on grounds that applicant misrepresented its identity to prospective voters, that applicant misrepresented the number of employees in the bargaining unit in order to achieve 40 percent level of membership support, and that notice of the vote, polling times and conduct of the polls were inadequate - Board dismissing ICTU's allegations and certifying HCCO - Application granted
BEFORE: Russell Goodfellow, Vice-Chair.
APPEARANCES: Daniel Randazzo, Angie Jones, Paula Randazzo and Mike Groom for the applicant; Andrew Tremayne, Julie Thibault and Caroline Roy for the responding party; Michael Gottheil, Lise Leduc, Roger Sarrazin and Garry Gifford for the intervenor Independent Canadian Transit Union, Local 9.
DECISION OF THE BOARD; May 26, 1999
Reasons for Decision
1This is a further decision in this application for certification.
2The applicant HCCO (LIUNA) has applied to become the bargaining agent for a bargaining unit currently represented by the intervenor ICTU, Local 9. The application was filed in a timely manner and a vote was held on February 13, 1998. The applicant won the vote ( 255 to 213) but the intervenor challenged the applicant's right to be certified on a number of grounds. One such ground was the assertion that the applicant is not a "trade union" within the meaning of the Labour Relations Act, 1995. The Board dealt with that issue in a decision dated July 13, 1998, finding that the applicant is a trade union within the meaning of the Act.
3Following the release of that decision, three issues remained to be dealt with:
(1) whether the applicant misrepresented its identity to prospective voters;
(2) whether the applicant misrepresented the number of employees in the bargaining unit in order to achieve the 40 percent level of membership support necessary to obtain a vote under the former section 8 of the Act;
(3) whether the notice of vote, polling times and conduct of the polls were adequate.
4These issues were the subject matter of additional evidence and argument that was heard over the course of a number of subsequent hearing dates. At those hearings, it should be noted, the employer took no position on the substantive issues but asserted that the onus was on the intervenor to prove its allegations.
5On the basis of the evidence and argument, I have decided to dismiss the intervenor's allegations. The reasons for my decision are as follows.
Misrepresentations as to the Applicant's Identity
6The applicant is a council of trade unions formed by two locals of the Labourers' International Union of North America (hereinafter referred to as "LIUNA"): locals 1100 and 1110. Some of the history of the applicant's formation is set out in the Board's decision dated July 13, 1998. In the course of that decision the Board noted that it accepted the applicant's evidence that it was not a "subordinate body" within the meaning of the LIUNA constitution and, therefore, that it did not need a LIUNA charter in order to be brought into existence. This aspect of the Board's decision was the subject matter of a request for reconsideration by the intervenor, which was dismissed in a decision dated November 12, 1998.
7While it is tempting to suggest that the issue that is raised here is but a restatement of the intervenor's earlier argument, to do so would be to miss the intervenor's point. The point here is not that the applicant is a subordinate or affiliated body within the meaning of the LIUNA constitution (that issue has already been dealt with) but, rather, that the applicant, in effect, misrepresented itself as a subordinate or affiliated body of LIUNA (or, perhaps, as LIUNA itself) during the organizing and/or vote campaign. In other words, the intervenor suggests that the applicant has attempted to have it both ways: by having maintained, on the one hand, that it is not a subordinate body for the purpose of the earlier "status" issue while taking, on the other hand, a quite different approach with