Ontario Labour Relations Board
3714-99-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Grand River Hospital Corporation, Responding Party v. Service Employees International Union, Local 220, Intervenor.
3715-99-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Grand River Hospital Corporation, Responding Party v. Service Employees International Union, Local 220, Intervenor.
BEFORE: Patrick Kelly, Vice‑Chair.
DECISION OF THE BOARD; May 2, 2000
1The styles of cause is hereby amended to reflect the correct name of the responding party: “Grand River Hospital Corporation”.
2The Board is in receipt of representations from all the parties following the taking of the representation votes pursuant to the Board’s decision of March 20, 2000.
3The intervenor (“SEIU”) raises a number of issues with respect to the representation votes that were conducted in each file. First, SEIU submits that in the representation vote of the full-time service voting constituency (“the service unit”) in Board File No. 3715-99-R the ballot box contained ballots cast by some employees of the full-time office and clerical voting constituency (“the office unit”) in Board File No. 3714-99-R, and vice versa. It also complains that the lone segregated ballot in the office unit representation vote was placed in the ballot box with all other non-segregated ballots. Moreover, SEIU contends that there were discrepancies between the number of ballots cast and the number of recorded voters. Finally, SEIU alleges that the responding party permitted the applicant’s representatives to move about the responding party’s premises on the day of the vote, thus facilitating the applicant’s influence over the voters. SEIU contends that this conduct gave rise to a climate of chaos around the polling areas.
4The April 19, 2000 “Returning Officer’s Report of Vote Count” in respect of the office unit representation vote suggests that of 105 ballots cast, three were improperly cast in the wrong ballot box, and thus not counted. It also confirms a discrepancy of two between the number of ballots cast and the number counted. It also reveals that of the remaining ballots, 97 were cast in favour of the applicant, one was cast in favour of SEIU, and two were challenged and segregated. The “Board Officer’s Report of Vote” of March 22, 2000 appears to confirm SEIU’s claims regarding the segregated ballot.
5With regard to the service unit the “Board Officer’s Report of Vote” of March 22, 2000 indicates that two of the 24 segregated ballots mistakenly ended up with the over 200 ballots in the non-segregated ballot box. The “Returning Officer’s Report of Vote Count” of April 19, 2000 reveals that of 237 ballots cast, 229 were cast in favour of the applicant, five were cast in favour of SEIU and three ballots were spoiled. It is not clear whether the two inadvertently placed ballots were among the three spoiled.
6Assuming, without deciding, that SEIU’s allegations concerning the freedom by which the applicant’s representatives were able to move about the responding party’s premises and speak to employees are true, the Board is not convinced that the combination of these allegations together with the apparent voting errors outlined above in any way influenced the ultimate outcome of the representation votes. The apparent voting irregularities are regrettable, and in other circumstances might have warranted a hearing. However, in the instant applications, the results of the representation votes are overwhelmingly in favour of the applicant. There is no suggestion that voters were not afforded an opportunity to cast their ballots in privacy. There are no particulars alleged of intimidation or coercion exercised against the voters. The Board is of the view that, in all the circumstances, the true wishes of the employees have been expressed, even if everything alleged by SEIU in respect of the representation votes is true.
7The intervenor (“SEIU”) 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 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 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.
8The applicant opposes the postponement of the Board’s decision in this matter. The responding party takes no position on the issue of postponement.
9In its decision of March 20, 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 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 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 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.
10Having regard to the agreement of the parties, the Board further finds that:
all office and clerical employees regularly employed for more than twenty-four (24) hours per week at Grand River Hospital Corporation in the City of Kitchener, save and except Supervisors, persons above the rank of Supervisor, Secretaries to the President, Vice Presidents, and Director of Public Affairs, Human Resources Staff, students employed during the school vacation period and persons covered by subsisting collective agreements.
Clarity Note:
For the purposes of clarity:
(i) dietary technicians and coders are included in the bargaining unit as per the memorandum of agreement dated May 19, 1999; and
(ii) employees occupying temporary vacancies, (vacancies not expected to exceed six (6) months in length and pregnancy and parental leaves, which leaves may be extended upon the mutual consent of the parties) shall not be included in the bargaining unit.
constitute a unit of employees of the responding party appropriate for collective bargaining in Board File No. 3714-99-R.
11Having further regard to the agreement of the parties, the Board further finds that:
all employees regularly employed for more than twenty-four (24) hours per week at the Grand River Hospital Corporation in the City of Kitchener, save and except professional medical staff, graduate nursing staff, undergraduate nurses, paramedical employees, office and clerical staff, supervisors