Ontario Public Service Employees Union v. City of Hamilton/Region of Hamilton-Wentworth, 2000 CanLII 12164

Ontario Public Service Employees Union v. City of Hamilton/Region of Hamilton-Wentworth

0587-00-R Ontario Public Service Employees Union, Applicant v. City of Hamilton/Region of Hamilton-Wentworth, Responding Party v. Canadian Union of Public Employees and its Local 5167; and The Corporation of the Town of Ancaster, Intervenors.

BEFORE: Brian McLean, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.

DECISION OF THE BOARD; August 10, 2000

1This is an application for certification.

2The applicant ("OPSEU") is applying to represent a group of ambulance workers in the Region of Hamilton-Wentworth. CUPE says, among other things, that it has a collective agreement with the Region which covers the employees who are the subject of this application and therefore the application is barred. The parties entered into a Memorandum of Settlement of some of the issues in dispute. As part of that settlement, the parties agreed to hold a further representation vote, one already having been held on June 2, 2000, as follows:

1. A further representation vote shall be conducted by the Board August 10, 2000 ("the 2nd vote"). Employees of the Responding Party who fall within the scope of the bargaining unit described in paragraph 3 below shall be included on the voters list and eligible to vote. The ballots cast in the representation vote conducted on June 2, 2000 ("the 1st vote") shall not be counted and the first vote shall not be considered in deciding this application. The ballots cast in 2nd vote shall determine whether the Applicant should be certified by the Board to represent the employees of the Responding Party affected by this Application, subject to the issue which is outstanding concerning whether the Application is barred because the affected employees will be covered by the collective agreement between the Responding Party & CUPE. This is without prejudice to the position of the Responding Party that it is/was not, as of the date of the Application, the employer of any employee affected by this Application, and having regard to the fact that the Responding Party will be the employer of all affected employees on or before the date of the 2nd vote, the Responding Party withdraws its objection pursuant to section 8.1 of the Labour Relations Act ("the Act").

2. For the purpose of clarity, and subject to any issues which may arise subsequent to the date of this memorandum, the parties agree that the Board will either dismiss the Application or certify the Applicant in relation to the bargaining unit of the employees of the Responding Party described in paragraph 3, based on the results of the 2nd vote, in the normal course, notwithstanding the position of the Responding Party that it is/was not, as of the date of the application, the employer of any employee affected by this Application.

3The Board issued a decision dated July 13, 2000 which ordered a representation vote in accordance with the agreement of the parties. Paragraph 1 of that decision states:

1. A hearing was scheduled in this matter on July 11, 2000. The parties signed a Memorandum of Agreement dealing with some of the issues in dispute. That Agreement provided that there shall be a hearing in this matter on July 25, 2000 and that subsequent to the hearing there shall be a representation vote on August 10, 2000. A representation vote was held on June 2, 2000. The Parties have agreed that the ballots cast in that vote shall not be counted and shall not be considered in deciding this application.

4CUPE has requested that the Board seal the ballot box pending the outcome of proceedings which are scheduled to be heard in October 2000. CUPE asserts that it is concerned that the counting of the ballots will prejudice its position in those proceedings. OPSEU asserts that the ballot box should be opened and the ballots counted because, if OPSEU were to lose the representation vote, that would obviate the need for hearings. The employer takes no position, although it states that it understood that the ballot box would be sealed.

5There is nothing in the Board's decision dated July 13, 2000 which requires that the ballot box be sealed. The reference in that decision to sealing the ballot box is a reference to the ballots cast in the representation vote held on June 2, 2000. Similarly, the only reference to sealing the ballot box in the Memorandum of Agreement is a reference to the June 2, 2000 vote. Indeed, the context of paragraph 1 and paragraph 4 (particularly the words "in the normal course" in paragraph 4) of the Memorandum of Agreement suggests that the ballots would be counted.

6There being no apparent agreement to seal the ballot box, the Board applies its normal considerations. In our view, the ballots should be counted, if for no other reason that one result may be that hearings will not be required. Any prejudice which may be suffered by CUPE is diminished by the fact that its argument that it holds bargaining rights are primarily legal ones. In addition, all parties are already aware that a number of ambulance employees have signed OPSEU membership cards.

7For all of the foregoing reasons, the ballot are to be counted following the representation vote.

"Brian McLean"

for the Board