2377-00-R Ontario Public Service Employees Union, Applicant v. St. Joseph’s Hospital, Responding Party v. Security & Service Workers Union Local 503 affiliated with the Christian Labour Association of Canada; Canadian Union of Public Employees Local 786; Ontario Nurses’ Association, Intervenors.
BEFORE: David McKee, Vice‑Chair, and Board Members J. A. Rundle and H. Peacock.
DECISION OF THE BOARD; November 17, 2000
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 (the “Act”).
3Some background is needed to put this application in context. On November 1, 2000, Canadian Union of Public Employees, Local 786 made application under section 22 of the Public Sector Labour Relations Transition Act (“PSLRTA”) to determine the number and descriptions of bargaining units and the bargaining agents of such units at St. Joseph’s Hospital (Board File No. 2263-00-PS). St. Joseph’s Hospital is allegedly a successor to St. Joseph’s Hospital in Hamilton, and the Hamilton Psychiatric Hospital. St. Joseph’s Hospital does not dispute that it is the successor but states that the “changeover date” under the PSLRTA is November 13, 2000.
4These applications were filed November 14, 2000. As of that date no trade union had bargaining rights in respect of any employee employed in the Centre for Mountain Health Services (formerly Hamilton Psychiatric Hospital).
5Section 28(2) of the PSLRTA provides:
During the period beginning 10 days after the order is requested and ending when the order is made, no person may apply for certification of a bargaining agent to represent employees of the successor employer who are not members of a bargaining unit when the order is requested.
CUPE Local 736’s application was filed November 1, 2000. Because November 11, 2000 fell on a Saturday, and the following Monday was a holiday, the 10 day period referred to in section 28(2) of the PSLRTA expired on November 14, 2000, the date this application was made. As the Board said in The Women’s Christian Association of London (“WCA”), [1998] OLRB Rep. May 496 at para. 65:
Section 28(2) contemplates that non-union employees may make a certification application despite an application to the Board to restructure bargaining units under Bill 136. Indeed, the section gives non-union employees an additional 10 days after the order is requested to make their application. In other words, not only is there no incongruity between an outstanding certification application and an outstanding restructuring request, but the Legislature has given non-union employees an extra window of opportunity to make such certification application, despite a Bill 136 request. The statute clearly contemplates that the two can proceed together – or, at least, that the certification application can go forward without any necessary conflict with Bill 136.
[emphasis in original]
Accordingly, this application is timely.
6On November 14, 2000 the Ontario Nurses’ Association made application for its traditional housing craft unit in respect of unrepresented employees working at the Centre for Mountain Health Services. (Board File No. 2388-00-R). This group is part of the unit applied for in this application. (A separate vote will be held in that unit on the same day as the vote is held in this unit. Some employees will be entitled to vote in both votes).
7Both the applicant and the responding party agree that an “all employee” unit is or could be appropriate although the responding party has a number of specific enumerated exclusions. ONA asserts that the unit should exclude its proposed craft unit. CUPE Local 736 proposes a number of exclusions, mirroring its unit at the St. Joseph’s Hospital campus. The Board will follow its usual practice of ordering a vote in the widest possible voting constituency, and leaving it to the parties to challenge persons that party says should not be in the unit.
8It appears to the Board on an examination of only the information provided in the application and the information and membership evidence filed by the applicant (see section 8(3) of the Act), 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.
9The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of St. Joseph’s Health Care Hamilton employed at its Centre for Mountain Health Services in Hamilton, Ontario, save and except supervisors and persons above the rank of supervisor.
10The vote will be held on November 21, 2000. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
11All individuals who had an employment relationship with the responding party in the voting constituency on November 14, 2000, the certification application filing date, are eligible to vote. Employees having an employment relationship on November 14, 2000, 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.
12As noted above there is a dispute among the parties as to the proper description of the bargaining unit. There are many positions that one party or another would prefer to see excluded from this bargaining unit (sometimes because the party wishes to have persons occupying these positions included in a different bargaining unit). All persons who fall within the voting constituency described above are entitled to cast a ballot, regardless of this dispute. Any such person attending at the representation vote shall be entitled to cast a ballot. The Board relies on the parties to this application to state any challenge to the right of an individual to vote at the time that person seeks 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.
13Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party. The ballot box will be sealed.
14The 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.
15Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for certification, other than status disputes, 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 five days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken. Representations with respect to any status dispute must be made in accordance with the directions provided in Information Bulletin No. 4: Status Disputes in Certification Applications (Non-Construction).
16The matter is referred to the Registrar to be scheduled for hearing with Board File No. 2263-00-PS.
“David McKee”
for the Board