3727-99-R National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. St. Mary’s General Hospital, Responding Party v. Service Employees International Union, Local 220, Intervenor.
BEFORE: Laura Trachuk, Vice‑Chair, and Board Members J. A. Rundle and
H. Peacock.
DECISION OF THE BOARD; May 4, 2000
The style of cause is hereby amended to reflect the correct name of the responding party: “St. Mary’s General Hospital”.
The 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 21, 2000.
The 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.
The applicant opposes the postponement of the Board’s decision in this matter. The responding party takes no position on the issue of postponement.
In its decision of March 21, 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.
Having regard to the agreement of the applicant and responding party, the Board further finds that:
all employees of St. Mary’s Hospital at Kitchener, Ontario, regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period as per the Certificate dated February 19, 1974, save and except professional medical staff, graduate nursing staff, undergraduate nurses, graduate pharmacists, undergraduate pharmacists, graduate dieticians, student dieticians, technical personnel, supervisors, persons above the rank of supervisor, office staff, student radiology technicians, student medical laboratory technicians and all those persons covered by subsisting collective agreements,
constitute a unit of employees of the responding party appropriate for collective bargaining.
For the purposes of clarity the Board notes that employees occupying temporary full-time vacancies (vacancies of up to six months for any reason, including maternity/adoption leave, which leaves may be extended upon the mutual consent of the parties) shall continue to be included in the bargaining unit.
On 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.
The 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.
Meeting and hearing dates set previously are hereby cancelled.
The 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.
“Laura Trachuk”
for the Board