Ontario Labour Relations Board
File No.: 3751-99-R Date: June 7, 2000
Applicant: National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) Responding Party: Trinity Lutheran Social Services (London) operating as Country Terrace Nursing Home Intervenor: Service Employees International Union, Local 220
Before: Brian McLean, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.
Decision of the Board
1The style of cause is hereby amended to reflect the correct name of the responding party: "Trinity Lutheran Social Services (London) operating as Country Terrace Nursing Home".
2This is a displacement application for certification. A representation vote has been held pursuant to a Board order. Following the representation vote held in this matter, the Board received submissions from the parties to this application.
3The intervenor ("SEIU") submits that this application should be dismissed because the applicant did not comply with the Board's Rules of Procedure in filing this application. It relies on other occasions in other proceedings where the applicant's certificate of delivery has been inaccurate. However, the intervenor has filed no particulars of this allegation which relate to this application and accordingly, the Board will not refer this matter to a hearing or postpone issuing a certificate to the applicant.
4The SEIU also takes the position that the Board should postpone its decision in this matter until the latter of two events, namely the disposition of its contempt motion before the Superior Court, or the final disposition of proceedings under the constitution of the Canadian Labour Congress ("the CLC") in which it was found that the applicant had acted contrary to the CLC constitution in making displacement applications covering workplaces in which the intervenor held bargaining rights, including this one. SEIU contends that the issuing of a certificate at this time would potentially lead to labour relations uncertainty and chaos in the event the position of the SEIU prevails in either the court or CLC proceeding.
5The applicant opposes the postponement of the Board's decision in this matter.
6In its decision of March 22, 2000, a differently constituted panel of the Board ordered the representation vote in this matter, despite SEIU's request that the Board not conduct the vote on the basis of its court motion for an injunction (which now forms the basis for SEIU's contempt motion). Moreover, the Board (again, differently constituted) dealt with similar SEIU arguments in its oral decisions dated April 6, 2000 and April 11, 2000 covering this matter and a number of other certification applications (subsequently reduced to writing). In those decisions, the Board found no support for SEIU's position concerning the contempt motion or the CLC proceedings insofar as they impact upon proceedings under the Labour Relations Act, 1995 ("the Act"). The Board in those decisions refused to adjourn the proceedings, and ordered that the ballots cast in the representation vote be counted. In respect of the post-representation vote submissions made by SEIU in this matter, and for the same reasons already articulated by the other panels of the Board in the aforementioned decisions, the Board can find no valid reason to delay the final determination of this matter. The employees have unequivocally indicated their wishes to be represented by the applicant. Section 10 of the Act requires that where more than 50 percent of the ballots cast in the representation vote are cast in favour of the applicant, the Board shall certify the applicant. There does not appear to be any Board discretion to postpone the issuing of a certificate. However, even if there were such a discretion, postponement would leave the employees in at least as uncertain a labour relations position as that alleged by SEIU as a result of the issue of a certificate that continues to be the subject of ongoing litigation in other fora. The Board declines to postpone issuing a decision, or to conduct a further hearing to deal with arguments that have been previously considered and rejected by the Board.
7Having regard to the agreement of the applicant and responding party, the Board further finds that:
all employees of Trinity Lutheran Social Services (London) operating as Country Terrace Nursing Home at Komota, Ontario, save and except professional nursing staff, supervisors, persons above the rank of supervisor, office staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period,
constitute a unit of employees of the responding party appropriate for collective bargaining.
8On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant. There are four disputed ballots which, having regard to the results of the vote, need not be referred to a hearing.
9A certificate will issue to the applicant.
10The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.
11Meeting and hearing dates set previously are hereby cancelled.
12The responding party is directed to post copies of this decision immediately, adjacent to all copies of the "Notice of Vote and of Hearing" posted previously. These copies must remain posted until the date that had been set for the hearing.
"Brian McLean"
for the Board