Ontario Labour Relations Board

File Nos.: 2742-00-R, 2745-00-R

2742-00-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Extendicare (Canada) Inc. (Part Time Unit), Responding Party v Service Employees International Union, Local 183; Service Employees International Union, Local 268; Service Employees International Union, Local 220, Intervenors.

2745-00-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Extendicare (Canada) Inc. (Full Time Unit), Responding Party v. Service Employees International Union, Local 183; Service Employees International Union, Local 268; Service Employees International Union, Local 220, Intervenors.

BEFORE: Patrick Kelly, Vice‑Chair, and Board Members J. A. Ronson and R. R. Montague.

DECISION OF THE BOARD; December 19, 2000

1. These are displacement applications for certification. Board File No. 2742-00-R is in respect of part-time employees. We hereinafter refer to this application as “the part-time application”. Board File No. 2745-00-R covers full-time employees, and we hereinafter refer to this application as “the full-time application”.

2. The applications cover nine locations of the responding party in various areas of its Ontario operations. There are full-time and part-time employees in each location.

3. It would appear that the responding party and the intervenors in these applications, are parties to “master” collective agreements covering full-time and part-time employees respectively, some of whom are the subject of these applications. The recognition clause in the full-time master collective agreement reads as follows:

2.01 The Employer recognizes the Union as the sole collective bargaining agent for all its employees in its owned Nursing Homes licensed under the Nursing Home Act as amended, in the geographical jurisdiction of Locals 183, 220, 268 and 478 as laid out in the Constitutions of respective locals, save and except registered nurses, physiotherapists, occupational therapists, supervisors, foremen, persons above the rank of supervisor or foreman, office staff, persons regularly employed for not more than forty-five (45) hours bi-weekly, and students employed during the school vacation period.

4. The recognition clause in the part-time master collective agreement reads as follows:

2.01 The Employer recognizes the Union as the sole collective bargaining agent for all its employees in its owned Nursing Homes licensed under the Nursing Home Act as amended, in the geographical jurisdiction of Locals 183, 220, 268 and 478 as laid out in the Constitutions of respective locals, regularly employed for not more than forty-five (45) hours bi-weekly, and students employed during the school vacation period, save and except registered nurses, physiotherapists, occupational therapists, supervisors, foremen, persons above the rank of supervisor or foreman, office staff staff and persons covered by subsisting collective agreements.

5. It would appear that the entity referred to in both the above recognition clauses, Local 478 is now, as a result of a successorship, Local 204 of the Service Employees International Union (“Local 204”). Local 204, it seems, represents employees in other locations of the responding party’s operations, locations not covered by these applications.

6. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995 (the “Act”).

7. It appears to the Board on an examination of only the information provided in the applications 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 applications for certification were members of the union at the time the applications were made.

8. The responding party disputes the applicant's estimate of the number of employees in the applicant's proposed bargaining units. Furthermore, the responding party proposes a different bargaining units those proposed by the applicant and it contends that the applicant's bargaining units could not be appropriate. It gives notice under section 8.1 of the Act.

9. The Board finds that the bargaining unit described in the full-time application could be appropriate. After comparing the membership evidence provided by the applicant in the full-time application 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 full-time bargaining unit for the purposes of obtaining a representation vote and having that vote counted.

10. The Board also finds that the bargaining unit described in the part-time application could be appropriate. However, after comparing the membership evidence provided by the applicant in the part-time application against the information provided by the responding party, the Board cannot be absolutely certain that the percentage of the individuals who appear to be members of the trade union is forty per cent or more in the bargaining unit proposed by the applicant. In these circumstances, the Board directs that the ballot boxes from the representation vote in the part-time application be sealed. It should be noted that the responding party indicated in its response that it agreed to count the ballots cast in respect of the part-time unit on the condition that “the ballots are sealed and segregated pending a decision from the Board on the outstanding issues”. The Board does not consider a conditional agreement as a proper expression of the responding party’s agreement to count ballots. Accordingly, the ballots will not be counted until the Board so orders or the applicant and responding party agree.

11. There were 18 interventions filed in respect of these applications, by three locals of the Service Employees International Union (“the intervenors”). In each, the intervenors take issue with the applicant’s proposed bargaining units, arguing that the proposed bargaining units do not reflect the existing bargaining unit configuration in the nine locations that are the subject of these applications. The intervenors contend further that the applicant has failed to establish 40% membership support in each of what the intervenors argue are the 18 existing bargaining units which were separately certified previously by the Board. Moreover, the intervenors argue that the applicant’s proposed two bargaining units carve out employees who are covered by the applicable master collective agreements, which are the product of voluntary “central bargaining”. Finally, the intervenors contend that, because there are multiple incumbent trade unions in these matters, a vote could not proceed because of balloting difficulties. There would have to be different names on the ballots, depending on which intervenor has the bargaining rights in a particular location of the responding party’s operations. For all these reasons, the intervenors request that the applications be dismissed. In the alternative, the intervenors request that no representation votes be held pending a hearing into the issue of bargaining unit configuration. In the further alternative, the intervenors submit that if representation votes are held, that the ballot boxes be sealed until the appropriate bargaining units are determined.

12. In the interest of perserving all the positions put forth by the parties, representation votes should be conducted on a segregated basis. The issue of the appropriate bargaining units, and the arguments of the various parties with respect to that issue, can be dealt with by the panel assigned to the hearing of these matters. However, given the breadth of the recognition clauses in the master collective agreements, cited above, and the allegation by the intervenors that the applicant is attempting to carve out smaller bargaining units in these applications, the Board is of the view that both representation votes should be sealed, and the ballots not counted until the Board so orders or all the parties agree.

13. The Board is in receipt of correspondence dated December 15, 2000 from counsel for Local 204 of the Service Employees International Union in which he advises that Local 204 was served copies of the applications on December 13, 2000 by the applicant, but that the applicant did not inform the Board or the other intervenors of this service. Counsel also advises that Local 204 anticipates the intervenors will take positions affecting the rights of Local 204, and though he concedes that the applications appear not to relate to Local 204, he asks for further time to prepare an intervention for filing on December 22, 2000.

14. The Board declines the request of counsel for Local 204 in light of the fact that Local 204 admits it was served on December 13, 2000, albeit without the knowledge of the Board or the intervenors. However, Local 204 may file an intervention if it so wishes, subject to any objection of the other parties in these applications which may be dealt with by the panel of the Board assigned to hear these matters.

15. The Board directs that in respect of the full-time application, a representation vote be taken of the individuals in the following voting constituency::

all employees of Extendicare (Canada) Inc. in its owned Nursing Homes licensed under the Nursing Home Act as amended, in the areas known as the Counties of Northumberland; Peterborough; Hastings; Prince Edward; Lennox & Addington; Frontenac; Leeds; Grenville; Dundas; Stormont; Glengarry; Prescott; Russell; Carleton; Lanark; Renfrew; Elgin; Middlesex; Oxford; Grey; Haldimand Norfolk (west of highway #6); Wellington (west of highway #6); Waterloo (north of Highway #401); and the City of Sarnia, and the Districts of Rainy River, Kenora, Algoma, and Thunder Bay, save and except registered nurses, physiotherapists, occupational therapists, supervisors, foremen, persons above the rank of supervisor or foreman, office staff, persons regularly employed for not more than forty-five (45) hours bi-weekly, and students employed during the school vacation period.

Clarity Note: The geographic scope of the bargaining unit is intended to coincide with the geographic jurisdiction of SEIU Locals 183, 220, and 268 as of the date of certification.

16. The Board further directs that in respect of the part-time application, a representation vote be taken of the individuals in the following voting constituency:

all employees of Extendicare (Canada) Inc. in its owned Nursing Homes licensed under the Nursing Home Act as amended, in the areas known as the Counties of Northumberland; Peterborough; Hastings; Prince Edward; Lennox & Addington; Frontenac; Leeds; Grenville; Dundas; Stormont; Glengarry; Prescott; Russell; Carleton; Lanark; Renfrew; Elgin; Middlesex; Oxford; Grey; Haldimand Norfolk (west of highway #6); Wellington (west of highway #6); Waterloo (north of Highway #401); and the City of Sarnia, and the Districts of Rainy River, Kenora, Algoma, and Thunder Bay, regularly employed for not more than forty-five (45) hours bi-weekly, and students employed during the school vacation period, save and except registered nurses, physiotherapists, occupational therapists, supervisors, foremen, persons above the rank of supervisor or foreman, office staff and persons covered by subsisting collective agreements.

Clarity Note: The geographic scope of the bargaining unit is intended to coincide with the geographic jurisdiction of SEIU Locals 183, 220, and 268 as of the date of certification.

17. The vote will be held on December 20 and 21, 2000. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".

18. All individuals who had an employment relationship with the responding party in the voting constituencies on December 13, 2000, the certification applications filing date, are eligible to vote. Employees having an employment relationship on December 13, 2000, the certification applications 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.

19. Ballots cast in the representation votes are to be segregated and sealed by location, as follows:

New Orchard Lodge, 99 New Orchard , Ottawa

Starwood, 114 Starwood Road, Nepean, Ontario, K2G 3N5

Medex, 1865 Baseline Road, Ottawa, Ontario, K2C 3K6

Kingston, 309 Queen Mary Road, Kingston, K7M 6P4

Peterborough, 80 Alexander Avenue, Peterborough, K9J 6B4

London, 860 Waterloo Street, London, N6A 3W6

Port Stanley, 4551 East Street, Port Stanley, N5L 1J6

Van Daele Manor, 39 Van Daele Street, Sault Ste. Marie, P6B 4V3

Tendercare, 770 Great Northern Sault Ste Marie, P6A 5K7

Ballots cast in each local area cited above are also to be segregated on the basis of the part-time and full-time status of the voters.

20. Voters at the New Orchard Lodge, the Starwood Lodge, Medex, Peterborough and Kingston locations will be asked to indicate whether or not they wish to be represented by the applicant or Service Employees International Union Local 183. Voters at the Van Daele Manor and Tendercare locations will be asked to indicate whether or not they wish to be represented by the applicant or Service Employees International Union, Local 268. Voters at the London and Port Stanley locations will be asked to indicate whether or not they wish to be represented by the applicant or Service Employees International Union Local 220.

21. The 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 each "Notice to Employees of Application for Certification". These copies must remain posted for 30 days.

22. The Board notes that there are no completed copies of Confirmation of Posting in either Board file for the Tendercare location of the responding party. To the extent the responding party failed to make and post copies of the Application for Certification (Form A-1) and/or the Notice to Employees of Application for Certification (Form C-2) at the Tendercare location, it is directed to do so immediately. These copies must remain posted for a period of 30 days. The responding party is further directed to file with the Board a completed Confirmation of Posting for each Board file, verifying that the above-mentioned copies have been posted appropriately, and to do so before the end of business, December 19, 2000.

23. Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the applications for certification, including any matters relating to the representation vote, 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).

24. These matters are referred to the Registrar for scheduling of a hearing before a panel of the Board as soon as possible.

“Patrick Kelly”

for the Board