1263-00-R Ontario Public Service Employees Union, Applicant v. 1187655 Ontario Limited c.o.b. as Bayview Retirement Home, Responding Party.
BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.
DECISION OF PATRICK KELLY, VICE-CHAIR, AND BOARD MEMBER D. A. PATTERSON; August 2, 2000
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995 (the “Act”).
It 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.
In its response the responding party disputes the applicant's estimate of the number of employees in the applicant's proposed bargaining unit. Furthermore, the responding party proposes a different bargaining unit than that proposed by the applicant and it contends that the applicant's bargaining unit could not be appropriate. It gives notice under section 8.1 of the Act.
Subsequent to the filing of the response in this matter, the parties reached agreement concerning the description of the bargaining unit, with the assistance of a Labour Relations Officer. Having regard to the agreement of the parties, the Board finds that:
all employees of 1187655 Ontario Limited c.o.b. as Bayview Retirement Home in the Town of Belleville, Ontario, save and except supervisors and persons above the rank of supervisor.
constitute a unit of employees of the responding party appropriate for collective bargaining.
After comparing the membership evidence provided by the applicant as against the information provided by the responding party, the Board finds that the numerical difference between the parties is not significant. The applicant has established sufficient membership support in the agreed bargaining unit for the purposes of obtaining a representation vote and having that vote counted.
Having regard to the agreement of the parties as to the appropriate bargaining unit, the Board directs a representation vote be taken of the individuals in the following voting constituency:
all employees of 1187655 Ontario Limited c.o.b. as Bayview Retirement Home in the Town of Belleville, Ontario, save and except supervisors and persons above the rank of supervisor.
The application was filed with the Board on July 28, 2000. For reasons that are not clear, the applicant requests that the representation vote be held on August 3, 2000. The responding party, on the other hand, takes the position that because it was not properly served with the application until July 28, 2000 (as opposed to July 27, 2000, as claimed by the applicant in its Certificate of Delivery), the vote should be held on August 4, 2000.
Section 8(5) of the Act states:
(5) Unless the Board directs otherwise, the representation vote shall be held within five days (excluding Saturdays, Sundays and holidays) after the day on which the application for certification is filed with the Board.
As the application was filed with the Board on July 28, 2000, and there are no compelling reasons to direct otherwise, the vote will take place on August 4, 2000. Other vote arrangements will be as determined by the Registrar as set out on the attached “Notice of Vote and of Hearing”.
All individuals who had an employment relationship with the responding party in the voting constituency on July 28, 2000, the certification application filing date, are eligible to vote. Employees having an employment relationship on July 28, 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.
Voters 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 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.
Any 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 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).
The matter is referred to the Registrar.
“Patrick Kelly”
for the majority
DECISION OF BOARD MEMBER J. A. RUNDLE; August 2, 2000
I dissent.
A plain reading of sections 8 and 8.1 of the Labour Relations Act, 1995 (the “Act”) requires the Board to seal the ballot box, when as in the instant matter, an employer has given notice that it disagrees with the trade union's estimate of the number of individuals in the unit described in the application for certification.
Subsection 8.1(4) requires the Board to seal the ballot box unless the trade union and the employer agree otherwise. Accordingly, I would have directed the ballot box to be sealed.
“J. A. Rundle”