National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) v. Maplewood Nursing Home Limited o/a Cedarwood Village, 2000 CanLII 12040

Ontario Labour Relations Board

3865-99-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Maplewood Nursing Home Limited o/a Cedarwood Village, Responding Party v. Service Employees International Union, Local 220, Intervenor.

3866-99-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Maplewood Nursing Home Limited o/a Cedarwood Village, Responding Party v. Service Employees International Union, Local 220, Intervenor.

BEFORE: Laura Trachuk, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.

DECISION OF THE BOARD; July 17, 2000

1These are two displacement applications for certification of both a full-time and a part-time bargaining unit of nurses. The applicant (referred to as the "CAW") applied to displace the incumbent (referred to as the "SEIU") as the bargaining agent in three bargaining units of employees of the responding party. The CAW has since been certified to represent the employees in the service unit. There are outstanding issues with respect to the full-time and the part-time nurses' units. In a decision dated June 12, 2000, the Board set out the history of the applications, outlined the outstanding issues between the parties and asked them to submit written submissions

2On March 24, 2000, the CAW applied to represent the employees in the full-time and part-time nurses' bargaining units described in the collective agreement between the SEIU and the responding party. All of the parties indicated in their original pleadings that there was one person in the full-time bargaining unit. (The SEIU had originally been certified for a bargaining unit of three). The responding party stated that there was one person in the full-time unit but included two names on the schedule. A representation vote was held and both individuals named on the full-time schedule voted. The two employees named on the schedule are a full-time nurse who has been on sick leave for the past year and the nurse from the part-time unit who has been working the full-time hours in her absence. It appears that the unions believed that the person performing the full-time hours while the employee was on sick leave was the sole nurse in the full-time bargaining unit. As a result they both challenged the employee on sick leave and her ballot was segregated and sealed. As a practical result both ballots were segregated and sealed. The ballots cast in the part-time unit were also sealed.

3Both unions subsequently agreed at the post-vote meeting with the Labour Relations Officer that the employee on sick leave is in the full-time unit. However, the SEIU also took the position at that meeting that the individual performing her hours was still in the part-time unit. In its decision of June 12, 2000, the Board found that the employee who has been working the full-time hours during the absence of the full-time employee remained in the part-time bargaining unit according to a memorandum of agreement between the SEIU and the responding party which deals with part-time employees filling in in the full-time unit. No one had asserted that the employee was not working according to that agreement, on the contrary, the responding party and SEIU both said they understood that she was. The Board directed the parties to file written submissions on the outstanding issues which have now been received.

4The outstanding issues are as follows:

What should be the result of the Board's determination that there is only one person currently in the full-time bargaining unit?

Is there any outstanding issue with respect to whether the applicant appeared to represent 40% of the individuals in the bargaining unit?

Issue No. 1

What should be the result of the Board's finding that there is only one person currently in the full-time bargaining unit?

5The relevant sections of the Labour Relations Act, 1995 provide as follows:

7. (4) Where a collective agreement is for a term of not more than three years, a trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the last two months of its operation.

8. (1) Subject to subsection (2), upon an application for certification, the Board shall determine the unit of employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, conduct a vote of any of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit.

9. (1) If the trade union that applies for certification under subsection 7(4), (5) or (6) is certified as bargaining agent for any of the employees in the bargaining unit defined in the collective agreement, the trade union that was or is a party to the agreement, as the case may be, forthwith ceases to represent the employees in the bargaining unit determined in the certificate and the agreement ceases to operate in so far as it affects such employees.

6The SEIU argues that the Board should dismiss the application for the full-time bargaining unit as there is only one person in it. It submits that the Board should not change the bargaining unit description at this time as the parties agreed to the description contained in the application which is the one contained in the collective agreement. No party raised the issue of changing the bargaining unit description until late in the process after they had already agreed to the existing unit in a series of documents. The parties knew at the time of the original pleadings that there was only one person in the bargaining unit although they thought it was a different person. If the Board were to change the bargaining unit description it should have done so when it ordered the vote.

7The SEIU relies upon subsections 7(4) and 62(1) of the Act which, it asserts, require an applicant in a displacement application to apply for the same unit of employees represented by the incumbent trade union or possibly some smaller component thereof. It also relies upon the Board's practice and jurisprudence respecting such applications in which the Board has consistently required a trade union in a displacement application to apply to represent the incumbent trade union's existing bargaining unit.

8The SEIU argues further that dismissing the application for the full-time bargaining unit is consistent with the requirement for ballot secrecy since there is only one ballot remaining in the full-time bargaining unit.

9For the above reasons the SEIU asks that the application in Board File No. 3865-99-R be dismissed. In the alternative, it asks that both applications be dismissed and that the CAW be required to apply for an appropriate bargaining unit. In the third alternative if the Board determines that there is another appropriate bargaining unit, it asks that another representation vote be held with a new voting constituency.

10The CAW argues that the Board has a wide discretion to determine the appropriate bargaining unit and in this case that is a combined full-time and part-time unit notwithstanding that it applied for separate full- time and part-time units. It submits that the proper interpretation of subsection 9(1) is that if the bargaining unit sought in an application turns out to be composed of only a single employee, the result should not be to dismiss the application but to look for an appropriate unit.

11The responding party expresses a concern about the whole debate and asks that it not be left in a situation in which it is required to negotiate with one trade union for one employee and another trade union for everyone else.

12This appears to be the first time the Board has had to consider the prohibition against a one person bargaining unit found in subsection 9(1) in the context of a displacement application. The Board's practice has usually been to require that a union seeking to displace another as the representative of employees, apply for the existing bargaining unit. However, the Board has not had to consider that practice in the context of the limitation found in subsection 9(1) until now. Subsection 9(1) requires that the Board determine an appropriate bargaining unit description when it receives an application for certification. The section then directs that an appropriate bargaining unit must have more than one employee. That is the only limitation actually placed on the determination of an appropriate bargaining unit, although subsections 9(3)(4) and (5) deem certain groups of employees to be appropriate bargaining units.

13The Board has not determined appropriate bargaining units in these files although it did decide on voting constituencies. It is common for the Board not to actually make a determination on the appropriate bargaining unit until its final certification decision. Usually that determination reflects the agreement of the parties. In a displacement application is usually reflects the agreement of the union which wins the representation vote and the employer. However, in this case, if the Board were to find that the description of the full-time bargaining unit contained in the collective agreement between the SEIU and the responding party is appropriate, even if the parties subsequently agreed to it, it would be making a determination which contravenes the legislation. There is only one person in that bargaining unit and subsection 9(1) directs that a bargaining unit with one employee is not appropriate. The Board has usually required that a union seeking to displace another must apply for the existing bargaining unit because that is the prima facie appropriate bargaining unit and not because it has no discretion to find that another bargaining unit is appropriate. The Board has never said that it would not find that a different bargaining unit might be appropriate in an unusual case such as this one. In fact it has clearly reserved that discretion, see for example Ontario Hydro, [1980] OLRB Rep. June 882. The Board has also, of course, permitted a craft union to carve out a bargaining unit of craft employees from an existing unit in a displacement application.

14For the above reasons the Board has determined that the full-time bargaining unit currently represented by the SEIU cannot be an appropriate bargaining unit as there is only one employee in it.

15The Board must therefore determine what an appropriate bargaining unit would be. In this case the employees in the full-time and part-time bargaining units are all nurses and presumably perform the same duties. Furthermore, they share most of the same terms and conditions of employment and part-time employees fill in when the full-time employee is absent. In these circumstances the Board finds that the appropriate bargaining unit is a combined full-time and part-time bargaining unit. This bargaining unit is not inconsistent with subsection 7(4) as the applicant will not be representing any employees not currently in a bargaining unit defined in the collective agreement. Both bargaining units are contained in the collective agreement and votes have been held in both and not counted. The Board therefore directs that the full-time and part-time bargaining units be combined and that the votes cast in the full-time bargaining unit be counted with those cast in the part–time bargaining unit.

Issue No. 2

Is there any outstanding issue with respect to whether or not the applicant appeared to represent 40% of the employees in the bargaining unit?

16The relevant provisions of the Act are as follows:

7. (4) Where a collective agreement is for a term of not more than three years, a trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the last two months of its operation.

(12) The application for certification shall include a written description of the proposed bargaining unit including an estimate of the number of individuals in the unit.

(13) The application for certification shall be accompanied by a list of the names of the union members in the proposed bargaining unit and evidence of their status as union members, but the trade union shall not give this information to the employer.

(14) If the employer disagrees with the description of the proposed bargaining unit, the employer may give the Board a written description of the bargaining unit that the employer proposes and shall do so within two days (excluding Saturdays, Sundays and holidays) after the day on which the employer receives the application for certification.

8. (1) Upon receiving an application for certification, the Board may determine the voting constituency to be used for a representation vote and in doing so shall take into account,

(a) the description of the proposed bargaining unit included in the application for certification; and

(b) the description, if any, of the bargaining unit that the employer proposes.

(2) If the Board determines that 40 per cent or more of the individuals in the bargaining unit proposed in the application for certification appear to be members of the union at the time the application was filed, the Board shall direct that a representation vote be taken among the individuals in the voting constituency.

(3) The determination under subsection (2) shall be based only upon the information provided in the application for certification and the accompanying information provided under subsection 7(13).

(4) The Board shall not hold a hearing when making a decision under subsection (1) or (2).

(8) After the representation vote has been taken, the Board may hold a hearing if the Board considers it necessary in order to dispose of the application for certification.

(9) When disposing of an application for certification, the Board shall not consider any challenge to the information provided under subsection 7(13).

8.1 (1) If the employer disagrees with the trade union's estimate, included in the application for certification, of the number of individuals in the unit, the employer may give the Board a notice that it disagrees with that estimate.

(2) A notice under subsection (1) must include,

(a) the description of the bargaining unit that the employer proposes or a statement that the employer agrees with the description of the bargaining unit included in the application for certification;

(b) the employer's estimate of the number of individuals in the bargaining unit described in the application for certification; and

(c) if the employer proposes a different bargaining unit from that described in the application for certification, the employer's estimate of the number of individuals in the bargaining unit the employer proposes.

(3) A notice under subsection (1) must be given within two days (excluding Saturdays, Sundays and holidays) after the day on which the employer receives the application for certification.

(4) If the Board receives a notice under subsection (1), the Board shall direct that the ballot boxes from the representation vote be sealed unless the trade union and the employer agree otherwise.

(5) The following apply if the Board receives a notice under subsection (1):

1. The Board shall not do anything under section 10 except as allowed under paragraph 2 or as required under paragraph 8.

2. If the Board did not direct that the ballot boxes be sealed, the Board may dismiss the application under subsection 10(2).

3. Unless the Board dismisses the application as allowed under paragraph 2, the Board shall determine whether the description of the bargaining unit included in the application for certification could be appropriate for collective bargaining. The determination shall be based only upon that description.

4. If the Board determines that the description of the bargaining unit included in the application for certification could be appropriate for collective bargaining, the Board shall determine the number of individuals in the unit as described in the application.

5. If the Board determines that the description of the bargaining unit included in the application for certification could not be appropriate for collective bargaining,

i. the Board shall determine, under section 9, the unit of employees that is appropriate for collective bargaining, and

ii. the Board shall determine the number of individuals in that unit.

6. After the Board's determination of the number of individuals in the unit under paragraph 4 or 5, the Board shall determine the percentage of the individuals in the bargaining unit who appear to be members of the union at the time the application for certification was filed, based upon the Board's determination under paragraph 4 or 5 and the information provided under subsection 7(13).

7. If the percentage determined under paragraph 6 is less than 40 per cent, the Board shall dismiss the application for certification and, if the ballot boxes were sealed, the Board shall direct that the ballots be destroyed without being counted.

8. If the percentage determined under paragraph 6 is 40 per cent or more,

i. if the ballot boxes were sealed, the Board shall direct that the ballot boxes be opened and the ballots counted, subject to any direction the Board has made under subsection 8(7), and

ii. the Board shall either certify the trade union under subsection 10(1) or dismiss the application under subsection 10(2).

9. (1) Subject to subsection (2), upon an application for certification, the Board shall determine the unit of employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, conduct a vote of any of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit.

10. (1) The Board shall certify a trade union as the bargaining agent of the employees in a bargaining unit that is determined by the Board to be appropriate for collective bargaining if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.

17The SEIU argues that the application in the full-time bargaining unit should be dismissed because the CAW did not represent 40% of the individuals in that bargaining unit on the date of application. It reaches this conclusion because it assumes it knows the identity of the individual upon whose behalf evidence of membership was submitted to the Board. As the individual on whose behalf the SEIU believes a card was submitted was subsequently found to be in a different bargaining unit it asserts that the CAW did not therefore represent 40% of the actual members of the bargaining unit on the date of application. It claims that it was not therefore entitled to a representation vote and the application should be dismissed.

18The applicant responds that although it might be possible for the parties to deduce the identity of the individual who signed a membership card in the full-time unit, dealing with the issue would require the Board to actually reveal that confidential information contrary to subsection 119(1) of the Act. Moreover, it argues that the Act does not permit the Board to inquire into the sufficiency of membership evidence at this point in the process having regard to subsection 8(9). The responding party did not give notice under subsection 8.1 of the Act.

19The certification provisions set out above provide a complete scheme for certification applications. That scheme requires under subsection 8(2) that if the Board determines that 40% or more of the individuals in a proposed bargaining unit appear to be members of the union on the date the application was filed it shall direct a representation vote. Subsections 8(3), (4) and (9) require that the determination be made only on the material filed with the application and that the Board shall not hold a hearing when making a determination under subsection 8(2). Furthermore, subsection 8(9) prohibits the Board from considering any challenge to the evidence of union membership. The only exception to this process is if the employer gives notice under subsection 8.1 which it did not do in this case. The Board is therefore prohibited by subsections 8(3), (4) and (9) from revisiting the original determination upon which it was required to direct a representation vote. If it were to now find that 40% of the employees in the full-time bargaining unit were not in fact members of the trade union on the date of application it would be doing exactly what it is directed not to do by the legislation. It would be using information provided other than in the application and would have conducted a hearing before making a decision. It would also have considered a challenge to the information provided under subsection 7(13) which it is prohibited from doing. It is common for the parties to a certification application to agree on a bargaining unit description and its composition after a vote has taken place. As the Board has noted above, it commonly determines the appropriate bargaining unit description in the final decision certifying the trade union. The Board does not, indeed it is not permitted to, then go back and determine whether or not the applicant actually represented 40% of the employees held to be in the bargaining unit as it is finally determined. This scheme is intended to focus the determination of a trade union's entitlement to represent employees on the democratic process of the representation vote itself. And in this case the employee in the full-time unit has cast a ballot consistent with that principle.

20The Board has reached the above conclusions based on the requirements of the Act. However, these determinations also render the result which makes the most labour relations sense in these circumstances. The SEIU and the CAW are engaged in a war and it is not surprising that the SEIU is asserting its right to at least represent one individual nurse who has been on sick leave for a year even if it ultimately loses the vote in the part-time unit. However, a full-time bargaining unit of one nurse and a part-time bargaining unit of seven of eight others is undue fragmentation in the workplace. Furthermore, if the Board were to accept the SEIU's interpretation of the Act, the one full-time nurse could never change her union representation, a democratic right open to all other unionized employees. Her only option would be to apply to terminate the SEIU's bargaining rights but then no other trade union could apply to represent her. That result does not appear to be consistent with the overall scheme of the Act.

21For all of the above reasons the Board directs that the full-time and part-time bargaining units be combined. The Board also directs that the ballots cast in the full-time and part-time bargaining unit be counted together. This matter is referred to the Registrar to arrange for the counting of the ballots.

"Laura Trachuk"

for the Board

DECISION OF BOARD MEMBER J. A. RUNDLE; July 17, 2000

1. This case and its disposition raises several areas of concern with respect to the Board's process in certification applications. There appears to be no correlation between the membership evidence filed by an applicant and the list of employees actually employed in a bargaining unit. In other words, there is no requirement for the applicants list of members and the employers list of employees to match in any way, in order for the applicant to achieve a vote. The forty percent threshold, (absent a section 8.1 allegation) as far as I can determine relates to nothing. Further, in the event an incumbent trade union wishes to challenge the level of support in a displacement application, they are unable to do so as section 8.1 applies to employers only.

2. The Board, without any inquiry, voted a unit which both trade unions agreed had only one person eligible to vote. A situation which is not allowed under section 9.1 of the Act. In my view it would have been preferable to deal with the issue of the appropriateness of the bargaining unit prior to ordering a vote. Whether it be a combined unit or two separate units all parties to the process would have had an opportunity, before the vote, to argue their positions and go into the vote with a clear understanding of what the vote results would represent. To deal with this issue after the vote clearly is prejudicial to one side over the other because, as in the case before us, positions change to meet the level of support ascertained in the post-vote process.