Ontario Labour Relations Board

3865-99-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Maplewood Nursing Home Limited o/a Cedarwood Village, Responding Party v. Service Employees International Union, Local 220, Intervenor.

3866-99-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Maplewood Nursing Home Limited o/a Cedarwood Village, Responding Party v. Service Employees International Union, Local 220, Intervenor.

BEFORE: Laura Trachuk, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.

APPEARANCES: Anthony F. Dale and John Brady for the applicant; George Kanick for the responding party; Melissa Kronick and Nini Jones for the intervenor.

DECISION OF THE BOARD; June 12, 2000

1. The style of cause is hereby amended to reflect the correct name of the responding party: “Maplewood Nursing Home Limited o/a Cedarwood Village”.

2. These are displacement applications for certification for both a full-time and a part-time bargaining unit of nurses. The bargaining unit descriptions included in the applications are those found in the incumbent’s collective agreement with the responding party. The applicant (referred to as the “CAW”) indicates in the application that there is one person in the full-time bargaining unit. The responding party agreed in the response that there is one individual in the bargaining unit but included two names on the Schedule. Both the applicant and the intervenor (referred to as the “SEIU”) challenged one of the individuals, Arlene Thiessen, on the grounds that she is not a member of the bargaining unit. Ms. Thiessen has been on sick leave for a year. Ms. Harris, who was a part-time nurse, has been doing the full-time job since Ms. Thiessen went on leave. Both Ms. Harris and Ms. Thiessen cast ballots. Ms. Thiessen’s ballot was segregated and sealed as a result of the challenges, and as a practical result, so was Ms. Harris’s. As it was possible that one of them might be in the part-time unit, the ballots for that unit were not counted either.

3. At the meeting with the Labour Relations Officer after the vote, both unions changed their positions. The CAW agreed that Ms. Thiessen should be included in the full-time unit and took the position that therefore there was more than one person in the unit. The SEIU also agreed that Ms. Thiessen should be included in the full-time unit but asserted that Ms. Harris should be included in the part-time unit. The SEIU therefore claimed that there was still only one person in the full-time bargaining unit. The responding party did not participate in the meeting. The parties signed a Certification Worksheet at that meeting in which they indicated that they continued to agree on the bargaining unit description and outlined the dispute just referred to. Sometime after that meeting, the CAW filed submissions with the Board which included the request that the Board amend the bargaining unit if it finds that there is only one person in the full-time unit. The SEIU continues to assert that there is only one person in that unit and takes the position that the applicant may not be certified for that unit as a result.

4. Although Ms. Harris has been working in the full-time position for a year, the SEIU and the employer agree that she has been working under the part-time collective agreement consistent with an addendum to that agreement which deals with part-time employees temporarily replacing full-time employees. As a result, she maintains seniority in the part-time unit and will return to part-time hours when Ms. Thiessen returns. The CAW does not necessarily agree with this claim but had no evidence to call to refute it. Ms. Harris is therefore a member of the part-time bargaining unit for the purposes of these applications and the ballot she cast should be counted with that bargaining unit. As a result it appears that there is only one person in the full-time bargaining unit.

5. Section 9(1) is the section of the Labour Relations Act, 1995 (the “Act”) which refers to bargaining units of only person. It provides as follows:

9. (1) Subject to subsection (2), upon an application for certifi­cation, the Board shall determine the unit of employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, conduct a vote of any of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit.

(2) Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the trade union's right to certification, the Board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bargaining unit.

6. The SEIU argues that the applicant applied for the separate full-time and part-time bargaining units and that the parties subsequently agreed in writing that the appropriate bargaining units are those included in the collective agreement. It also notes that that agreement is consistent with the Board’s practice in certification applications seeking to displace an incumbent trade union. It asserts therefore, that the Board must find that those are the bargaining units and as there is only one person in the full-time unit it must dismiss that application. It argues that the CAW’s request that the bargaining unit description be amended simply came too late in the process to be considered by the Board.

7. The Board will not normally permit a party to change the position on the bargaining unit description that it has taken throughout the process and agreed to in writing. However, in this case the Board may not have the jurisdiction to find that the bargaining unit outlined in the application and agreed to by the parties is appropriate. As both parties noted, the Act does not prohibit a trade union from applying to represent a bargaining unit of only one person. Pursuant to section 9(1) upon receipt of an application for certification the Board must determine an appropriate bargaining unit. There is no exception in the Act relating to applications to displace other trade unions. However, the appropriate bargaining unit in a displacement application has, prima facie, been the one represented by the incumbent. That is a practice developed by the Board many years ago for good policy reasons. However, section 9(1) states that “in every case the [appropriate] unit shall consist of more than one employee”. In this case therefore it may not be open to the Board to find that the incumbent trade union’s bargaining unit is appropriate even if that was the one the applicant applied for and the one to which the parties have subsequently agreed. If it is not appropriate because there is only one person in it, the Act may require that the Board determine a bargaining unit that is appropriate.

8. Section 9 of the Act was referred to in the Board’s earlier decision of March 30, 2000. At the hearing the parties addressed the issue of the Board’s ability to certify a “single person” bargaining unit as well as the applicant’s request to amend its position on the bargaining unit description. However, they did not directly address the question of whether the Board must determine an appropriate bargaining unit under section 9(1) when it receives an application for certification, and if so, if it can find that the incumbent’s bargaining unit is appropriate if it only has one person in it. They also did not address what an appropriate bargaining unit might be if it cannot be the one represented by the incumbent trade union. The Board therefore invites the parties to make further submissions in this matter if they wish.

9. Furthermore, in its materials the SEIU raised an issue with respect to whether or not 40% of the employees in the full-time bargaining unit were members of the CAW on the date of application. That issue was also not addressed at the hearing. The parties are also invited to make submissions with respect to that issue as well.

10. The submissions, if any, should be submitted to the Board on or before June 16, 2000. Copies of the submissions should be provided to the other parties.

11. The Board will make its determination with respect to these applications after reviewing the parties’ submissions if any.

“Laura Trachuk”

for the Board