1425-00-R National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. St. Joseph’s General Hospital (Full Time), Responding Party v. Elliot Lake and Service Employees International Union, Local 204, Intervenor.
BEFORE: Marilyn Silverman, Vice‑Chair, and Board Members J. A. Rundle and G. McMenemy.
DECISION OF MARILYN SILVERMAN, VICE-CHAIR, AND BOARD MEMBER G. MCMENEMY; August 21, 2000
1This is a displacement application for certification.
2The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995 (the “Act”).
3The employees are currently represented by the intervenor.
4It appears to the Board on an examination of only the information provided in the application and the information and membership evidence filed by the applicant (see section 8(3) of the Act), that not less than forty per cent of the individuals in the bargaining unit proposed in the application for certification were members of the union at the time the application was made.
5The responding party disputes the applicant's estimate of the number of employees in the applicant's proposed bargaining unit. The responding party agrees with the bargaining unit description provided by the applicant. It gives notice under section 8.1 of the Act.
6The Board finds that the bargaining unit described in the application could be appropriate. After comparing the membership evidence provided by the applicant as against the information provided by the responding party, the Board finds that the numerical difference between the parties is not significant. The applicant has established sufficient membership support in its proposed bargaining unit for the purposes of obtaining a representation vote and having that vote counted. In any event, the responding party agreed that the ballots cast in the representation vote should be counted. However the ballot box is to be sealed pending the timeliness determination outlined in paragraph 10 below.
7The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of St. Joseph’s General Hospital, Elliot Lake, save and except professional medical staff, graduate nursing staff, undergraduate nurses, graduate pharmacists, graduate dietitians, students dietitians, technical personnel, supervisors, persons above the rank of supervisor, office staff, persons regularly employed for not more than twenty-four (24) hours per week, students employed during the school vacation period and operating engineers covered by a subsisting collective agreement.
8The vote will be held on August 23, 2000. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
9All individuals who had an employment relationship with the responding party in the voting constituency on August 16, 2000, the certification application filing date, are eligible to vote. Employees having an employment relationship on August 16, 2000, the certification application filing date, include employees who were not at work on that date, so long as there is a reasonable expectation of their return to employment.
10The intervenor submits that the application should be dismissed as being untimely pursuant to section 7(5) of the Act. In the circumstances, the Board directs that the ballot box from the representation vote be sealed. The ballots will not be counted until the Board so orders or the parties agree.
11The intervenor further alleges that the applicant has committed various unfair labour practices and that there are flaws in the A-4 filed with the application. For these reasons, the intervenor asserts that the application should be dismissed without a representation vote. The Board will not dismiss the application without a representation vote in these circumstances. The unfair labour practice allegations can be raised at the hearing.
12Voters will be asked to indicate whether they wish to be represented by the applicant or the intervenor in their employment relations with the responding party.
13The responding party is directed to post copies of this decision and of the "Notice of Vote and of Hearing" adjacent to each of the posted copies of the "Notice to Employees of Application for Certification". These copies must remain posted for 30 days.
14Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for certification, must file a detailed statement of representations with the Board and deliver it to the other parties, so that it is received by the Board within five days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken. Representations with respect to any status dispute must be made in accordance with the directions provided in Information Bulletin No. 4: Status Disputes in Certification Applications (Non-Construction).
15The matter is referred to the Registrar.
“Marilyn Silverman”
for the majority
DECISION OF BOARD MEMBER J. A. RUNDLE: August 21, 2000
The issue of whether the application is timely is fundamental to the Board’s jurisdiction to order a vote. If the application is not timely the Board has no jurisdiction to order the vote. To order the vote as the majority has is clearly prejudical to the incumbent trade union. I would therefore not have ordered the vote until the issue of timeliness had been determined.
Judith Rundle