3569-99-R National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. Provincial Nursing Home Limited Partnership c.o.b. as Seaforth Manor Nursing Home, Responding Party v. Service Employees International Union, Local 210, Intervenor.
BEFORE: Brian McLean, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.
DECISION OF THE BOARD; July 31, 2000
This is a request for reconsideration of the Board’s decision dated May 26, 2000 in this matter.
The facts are not in dispute. The Service Employees International Union, Local 210 (“SEIU”) held bargaining rights for a group of employees of Seaforth Manor Nursing Home. On March 7, 2000 the applicant National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) (“CAW”) filed an application to displace the SEIU as bargaining agent for those employees. The Board held a representation vote and a majority of employees voted in favour of representation by the CAW. This application came about as part of a process whereby the CAW were “raiding” many bargaining units held by the SEIU.
From the outset, SEIU has taken the position that this application ought to be dismissed because the CAW did not comply with the Board’s Rules when filing the application. In particular, it is asserted (and it is not really denied) that the CAW did not deliver a copy of the Board’s Form A-3 (the form sent by the Board for intervening in the proceeding) to SEIU. In addition, the CAW inaccurately certified on the certificate of delivery it filed with the Board that the Form A-3 had in fact been delivered to the SEIU.
The CAW has provided no explanation for its failure to deliver the proper material and its inaccurate certificate of delivery.
In the Board’s May 26, 2000 decision, the Board dismissed SEIU’s objection because it did not suggest that it was in any way prejudiced by the CAW’s omissions.
The SEIU requests reconsideration on two grounds, which it puts this way:
a) in failing to hold a hearing into the issues raised by the intervenor, the Board has violated the rules of natural justice and procedural fairness and acted in excess of its jurisdiction; and
b) the Board’s decision is patently unreasonable and erroneous, as well as inconsistent with previous Board decisions, which were not considered by the Board in rendering the instant decision.
We do not agree that the Board ought to have held a hearing to deal with the SEIU’s objections. The parties had a full opportunity to file submissions with the Board regarding the issue in dispute and each of the parties took advantage of that opportunity. There were no facts in dispute. The Board is not required to hold a hearing in every case, and in fact section 8(8) of the Act gives the Board discretion regarding whether to hold a hearing. In these circumstances, a hearing was unnecessary.
We also disagree that the Board’s decision was “patently unreasonable”, “erroneous” or “inconsistent with previous Board decisions”.
We agree with the SEIU that it is important that the Board’s Rules be complied with, particularly in applications for certification where there is a limited time for parties to respond. We also agree with the fact that a failure to comply with the Rules may result in the application date being set back (see Associated Contracting, [1998] OLRB Rep. Nov./Dec. 903). In certain circumstances, such failure may even result in the Board dismissing the application.
However, ultimately, the Board has the discretion to relieve against the strict application of the Rules (see Rule 44). In determining whether to grant relief, prejudice will often, as in this case, be a crucial determining factor. In this case, the fact is there was a form which was not delivered. Nevertheless, a timely intervention was filed. There was no suggestion of prejudice.
Accordingly, the request for reconsideration is denied.
“Brian McLean”
for the Board