Ontario Labour Relations Board
3794-99-R National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. Community Care Access Centre of the District of Thunder Bay, Responding Party v. Service Employees International Union, Local 268, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Rundle and
D. A. Patterson.
DECISION OF PATRICK KELLY, VICE-CHAIR, AND BOARD MEMBER D. A. PATTERSON; March 27, 2000
1This is a displacement application for certification.
2The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995 (the “Act”).
3The employees are currently represented by the intervenor.
4It appears to the Board on an examination of only the information provided in the application 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 application for certification were members of the union at the time the application was made.
5The responding party disputes the applicant's estimate of the number of employees in the applicant's proposed bargaining unit. It gives notice under section 8.1 of the Act.
6After comparing the membership evidence provided by the applicant as 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 bargaining unit for the purposes of obtaining a representation vote and having that vote counted.
7The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all office and clerical employees of the Community Care Access Centre of the District of Thunder Bay (CCAC), in the City of Thunder Bay, save and except supervisors, persons above the rank of supervisor, managerial, confidential secretary, the Administrative Assistant to the Executive Director, students in co-op training and job placement programs and/or employed during the summer and vacation periods.
8The vote will be held on March 29, 2000. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
9All individuals who had an employment relationship with the responding party in the voting constituency on March 21, 2000, the certification application filing date, are eligible to vote. Employees having an employment relationship on March 21, 2000, the certification application 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.
10Voters will be asked to indicate whether they wish to be represented by the applicant or the intervenor in their employment relations with the responding party.
11The intervenor has filed a copy of a decision and Order of the Superior Court of Justice (dated March 1, 2000) in respect of a motion for an injunction brought by the intervenor against certain individuals formerly associated with the intervenor, now associated with the applicant. The intervenor argues that the holding of a representation vote would be contrary to the Order and therefore submits that the application should be dismissed without a vote. Alternatively, the intervenor argues that no vote should be held until the Board conducts a hearing with respect to the matters raised by it. In the further alternative, the intervenor argues that if a vote is ordered, the ballot box should be sealed pending a hearing.
12As the Board stated in Delhi Nursing Home, Board File No. 3645-99-R, decision dated March 15, 2000 (unreported):
It is by no means clear that the Order of the Supreme Court of Justice has any impact upon the Board’s statutory obligations to process certification applications and to give employees the opportunity to cast ballots in representation votes, and to have those ballots counted, to determine which union will represent them for the purposes of collective bargaining. The Board’s general practice is to order certification votes if the preconditions for such orders are satisfied, and to have them counted. There are several advantages to a quick count. The Board is inclined to count the ballots in representation votes and will do so unless there are compelling reasons why the ballot box should be sealed.
In order to give the intervenor an opportunity to make representations as to how the Court’s Order may possibly affect the Board’s usual processes, this matter will be set down for hearing at an early date. The purpose of the hearing is only to consider argument on whether the Order prevents the Board from pursuing its usual process of counting ballots cast in representation votes. Should the intervenor fail to persuade the Board thereof, the parties should assume that the Board will order that the ballots will be counted after the hearing.
13In light of the intervenor’s submission regarding the Order, the Board directs that the ballot box will be sealed and the ballots will not be counted until the Board so orders or the parties agree.
14The responding party raises an issue related to the completeness of the Form C-1 (Notice to Employer of Appliction for Certifiction) delivered to it by the applicant. Tht issue may be dealt with at the hearing to be scheduled by the Registrar.
15The responding party also raises an issue with respect to the timeliness of the application. The responding party alleges that the intervenor applied for conciliation on March 16, 2000, five days prior to the filing of the present appliction. The responding party states that this appliction is therefore untimely pursuant to section 67 of the Act and should be dismissed.
16Even if the responding party’s allegtion is true, in and of itself the act of applying for conciliation does not trigger the application of section 67 of the Act. It is the appointment of a conciliation officer by the Ministry of Labour in response to a request that is critical to the issue of timeliness. The responding party did not allege, or file material respecting an appointment of a conciliation officer. The application appears to be timely.
17The 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 the "Notice to Employees of Application for Certification". These copies must remain posted for 30 days.
18Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for