1501-00-R National Automobile, Aerospace, Transporation and General Workers’ Union of Canada (CAW-Canada), Applicant v. St. Joseph’s Care Group (Full Time Service), Responding Party v. Service Employees Internatioanl Union, Local 268, Intervenor.
BEFORE: Marilyn Silverman, Vice‑Chair, and Board Members J. A. Ronson and H. Peacock.
DECISION OF MARILYN SILVERMAN, VICE-CHAIR, AND BOARD MEMBER H. PEACOCK; August 25, 2000
This is a displacement 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”).
The employees are currently represented by the intervenor.
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.
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.
The Board finds that the bargaining unit described in the application could be appropriate. 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 its proposed bargaining unit for the purposes of obtaining a representation vote and having that vote counted. However the ballot box is sealed pursuant to paragraph 13 below.
The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of St. Joseph’s Care Group in the classifications listed on Schedule “A” (presser, kitchen helper, houseperson, dietary aide, housekeeping aide, laundry/linen aide, resp. tech. aide, third cook, radiology aide, sewer, cook’s assistant, dietary porter, linen porter, radiology porter, assistant washer, cleaner, printer/stores helper, C.S.S.U. operator, O.R. aides, physio attendant, stores porter washer, second cook, pastry cook, first cook, baker, non-registered nursing assistant, orderly, maintenance helper, addictions crises worker, shipper/receiver, rehab assistants, O.T. assistants, recreationists Smith Clinic, orthopedic technicians, physio assistants, maintenance worker, storekeeper, R.P.N., recreationists/patient porter, painter), save and except stationary engineers, foremen, foreladies, persons above the rank of foreman or forelady, persons regularly employed for less than twenty-five (25) hours per week, full-time watchmen, professional help, and members of the Sisters of St. Joseph of Sault Ste. Marie.
The vote will be held on August 29, 2000. Other vote arrangements will be as determined by the Registrar and 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 August 22, 2000, the certification application filing date, are eligible to vote. Employees having an employment relationship on August 22, 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 they wish to be represented by the applicant or the intervenor in their employment relations with the responding party.
The intervenor alleges unfair labour practices in respect of this application. Further, the intervenor has filed submissions that the application be dismissed or alternatively that the ballot box be sealed because of an apparent breach of an Order of the Superior Court of Justice and because of a breach of a Constitution of the Canadian Labour Congress. The Board has considered similar submissions in previous decisions and found no support for the intervenor’s position. The Board in this instance having considered such submissions of the intervenor is not prepared to accede to these requests.
The intervenor further submits that the application ought to be dismissed because the applicant did not adhere to the Board’s Rules of Procedure. The Board has considered the submissions and at best finds the alleged breach of a minor technical nature and not prejudicial. In the circumstances, the Board is not prepared to dismiss the application based on these submissions.
The intervenor has also submitted that the application should be dismissed as being untimely pursuant to section 7(4) of the Act. For this reason, the Board directs that the ballot box from the representation vote be sealed. The ballots will not be counted until the Board so orders or the parties agree.
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, 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.
“Marilyn Silverman”
for the majority
DECISION OF BOARD MEMBER J. A. RONSON; August 25, 2000
It would appear that if the Employer agrees to count the ballots, having pleaded that section 8.1 applies, then there may be no bar if the Union loses the vote. In the circumstances then, no vote should take place until the section 8.1 issues are dealt with at a hearing. If a vote is ordered, then at the least the ballot box should be sealed until the section 8.1 issues are resolved.
“J. A. Ronson”