3693-99-R, 3694-99-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. St. Joseph’s Health Care London, Responding Party v. Service Employees International Union, Local 220, Intervenor v. Canadian Health Care Workers, Interested Party.
3695-99-R, 3696-99-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. St. Joseph’s Health Care London, Responding Party v. Service Employees International Union, Local 220, Intervenor v. Canadian Health Care Workers, Interested Party.
BEFORE: Gail Misra, Vice-Chair.
APPEARANCES: Anthony F. Dale, Kurt Smith, Ron Joyal for the applicant; Cheryl V. Rovis and Sheldon Bumstead for the responding party; Harold Caley, Nini Jones, and Christopher Wilson for the intervenor; Joanne L. McMahon, Daignault and M. Groom for the interested party.
DECISION OF THE BOARD; May 3, 2000
These are applications for certification filed by the applicant which is seeking to displace the Service Employees International Union, Local 220 (“SEIU” or “SEIU Local 220”) as the bargaining agent for full and part time employees at the St. Joseph’s Hospital and Mount Hope Centre for Long Term Care.
The parties have now agreed that the correct name of the responding party is St. Joseph’s Health Care London. The style of cause is amended to reflect the responding party’s name as “St. Joseph’s Health Care London”.
On May 1, 2000, the first day of hearing, the Board was asked to make the Canadian Health Care Workers (the “CHCW”) an intervenor in these proceedings. Having heard the parties’ submissions the Board ruled that the CHCW could remain as an interested party until after a decision had been made on what the certification application date is. In the event that the Board found that March 14, 2000 was the certification application date, the CHCW would have no continuing interest in these proceedings and would not be granted intervenor status. As will become clear in the following paragraphs, the Board found that the certification application date is March 14, 2000. The CHCW therefore maintained interested party status until that ruling was made and it left the hearing thereafter.
Also on May 1, 2000 the Board heard the parties’ submissions regarding the impact of the applicant’s (“CAW”) late delivery of these applications to the responding party (“St. Joseph’s”) and the inaccuracies in the Certificates of Delivery filed by the CAW in connection with these applications. Having considered the arguments made, the Board made an oral ruling on May 2, 2000 as follows:
These are applications for certification in which the Certificates of Delivery are incorrect and the applications were not delivered to the responding party until after 5 p.m. on March 14, 2000, the purported date of application. The responding party takes no issue with the late delivery at this stage in the proceeding as its concern has already been satisfactorily addressed by the Board in its decision directing the vote in March.
The SEIU Local 220 and the CHCW argue that these applications should be dismissed due to the inaccuracies in the Certificates of Delivery. In the alternative, it is argued that the Board should consider the application date for each application to be March 15, 2000, the next business day.
Having heard the submissions of the parties the Board is satisfied that the CAW was acting in good faith when it completed the Certificates of Delivery, and that it had every intention of delivering the applications to the responding party by facsimile transmission by the time certified to in the Certificates of Delivery. Due to a clerical error, the responding party’s facsimile number was entered incorrectly, and the result was that the faxes could not reach their required destination in a timely manner. The CAW made efforts to correct the problem, and the last application reached the responding party by around 6:30 p.m. on March 14, 2000.
There is no dispute that the SEIU Local 220 received its copies of the applications in a timely manner. CHCW was not an interested party at that juncture and was therefore also not affected by the delivery problems.
Accurate completion of the Certificate of Delivery portion of the Board’s forms is integral to the Board’s processing of applications. This is especially so in the case of certification and termination applications, given the strict time lines applicable in these applications. The Board’s Rules of Procedure therefore require completion of the Certificate and envision accurate completion thereof. However, the Board recognizes that due to unforeseen circumstances, problems of a technical nature may arise which cause a party to be unable to comply with the Board’s Rules.
Rule 44 allows the Board to relieve against the strict application of the Rules where it considers it advisable to do so.
In this case the Board relieves against the Rules to the extent that it is necessary to do so with respect to the delivery of the applications to the SEIU. The Certificates of Delivery state that the SEIU was receiving its delivery of the applications by facsimile. The delivery was made by hand. Given the circumstances of the problems that the CAW was having in faxing to the employer, it is no wonder that the applicant decided to deliver to the SEIU by hand delivery. There is no prejudice to the SEIU in this regard, it received the applications in a timely manner, and the Board therefore exercises its discretion under Rule 44 to override the error in the Certificates of Delivery.
The Board is also exercising its discretion with respect to the late delivery of the applications to the responding party, and with respect to the inaccuracies in the Certificates of Delivery regarding the delivery of the applications to the responding party. In my view the panel of the Board which made the vote decision has already relieved against the timing problem in its March decision. However, in the event that that was not clearly so, having considered all of the parties’ submissions and the circumstances of these applications, the Board exercises its discretion to permit the applications to be found to be filed and delivered on March 14, 2000. The Board specifically relieves against the strict application of the Rules in this regard.
As has been outlined above, the Board is of the view that the CAW was acting in good faith when it completed the Certificates of Delivery and it intended to deliver the applications to the responding party by 4 p.m. on March 14, 2000. It was unable to do so. The delay was less than a two hour one, and as such was not by any means extreme. To the extent that the responding party had any concerns about the delay, the Board has already provided the responding party with the remedy it was seeking. The responding party is not claiming any prejudice and is seeking nothing further. The parties making this motion were not personally affected by the delivery problems.
For all of these reasons the Board is satisfied that this is an appropriate situation in which to relieve against the strict application of the Rules, and the Board is satisfied that the applicant was not purposefully seeking to mislead the Board by its inaccurate completion of the Certificates of Delivery. The Board therefore finds that the certification application date is March 14, 2000.
Following the Board’s delivery of the oral ruling the CAW requested that the ballot boxes in these applications be opened and counted. St. Joseph’s has maintained all along that the votes cast should be counted and the issue of the bargaining agent should be resolved as soon as possible. Both the CAW and St. Joseph’s had made timely post-vote submissions regarding all remaining outstanding issues, including the list issues. The SEIU made no submissions. According to St. Joseph’s, all or almost all of the SEIU’s additions to the lists did not cast ballots and are therefore not material.
Since there are no other outstanding matters, the Board directs the Manager of Field Services to appoint a Labour Relations Officer to meet with the parties to resolve the list issues, to open the ballot boxes, and to count the ballots cast in these applications.
I am not seized.
“Gail Misra”
for the Board