Ontario Labour Relations Board
3748-99-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Middlesex Terrace, Responding Party v. Service Employees International Union, Local 220, Intervenor.
BEFORE: Patrick Kelly, Vice‑Chair, and Board Members J. A. Ronson and R. R. Montague.
DECISION OF THE BOARD; May 3, 2000
1The style of cause is hereby amended to reflect the correct name of the responding party: "Middlesex Terrace".
2The Board is in receipt of representations from all the parties following the taking of the representation vote pursuant to the Board's decision of March 22, 2000.
3At the Regional Certification meeting of April 18, 2000, the intervenor ("SEIU") took the position that the Board should not issue a certificate in this matter until the latter of two events, namely the disposition of its contempt motion scheduled to be heard before the Superior Court on May 19, 2000, 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 for certification covering workplaces in which the intervenor held bargaining rights, including this one.
4In 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 written decisions dated April 7, 2000 and April 18, 2000 covering this matter and a number of other certification applications. 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 SEIU's position at the Regional Certification meeting, 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 issue 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 resulting from the issue of a certificate that continues to be the subject of ongoing litigation in other fora. The Board declines to postpone issuing a certificate or to conduct a further hearing to deal with arguments that have been previously considered and rejected by the Board.
5Having regard to the agreement of the applicant and responding party, the Board further finds that:
all employees of Middlesex Terrace at its Nursing Home at Delaware, save and except registered nurses, supervisors, persons above the rank of supervisor, office staff, persons regularly employed for not more than 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.
6On the taking of the representation vote directed by the Board, more than fifty percent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.
A certificate will issue to the applicant.
7The 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.
8Meeting and hearing dates set previously are hereby cancelled.
9The 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.
"Patrick Kelly"
for the Board