3649-99-PS Service Employees’ International Union, Local 204, Applicant v. Niagara Health System; Canadian Union of Public Employees, Local 1531; Canadian Union of Public Employees, Local 1532; Canadian Union of Public Employees, Local 1742; Canadian Union of Operating Engineers & General Workers; International Union of Operating Engineers, Local 722¸ Responding Parties v. Ontario Public Service Employees Union; Ontario Nurses’ Association; Intervenors.
3740-99-PS Niagara Health System, Applicant v. Service Employees International Union, Local 204; Canadian Union of Public Employees, Local 7100; Ontario Public Service Employees Union; Ontario Public Service Employees Union, Local 214; Ontario Public Service Employees Union, Local 215; Canadian Union of Operating Engineers and General Workers, Local 101; International Union of Operating Engineers, Local 772; Responding Parties v. Ontario Nurses’ Association, Intervenor.
1700-00-U Canadian Union of Public Employees, Local 7100, Applicant v. Service Employees International Union, Local 204; Niagara Health System, Responding Parties.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD: October 17, 2000
Board File 1700-00-U is an application filed pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1 (“the Act”) alleging violations of sections 5, 70, 72 and 76 of the Act. For ease of reference, I shall refer to this matter as “the complaint”.
Board Files 3649-99-PS and 3740-99-PS are applications brought by the Service Employees International Union, Local 204 (“SEIU”) and Niagara Health System (“Niagara”) respectively under sections 21, 22 and 23 of the Public Sector Labour Relations Transition Act,. 1997 (“the PSLRTA”). Again, for ease of reference, these matters shall be referred to as “the PSLRTA applications”. Together the PSLRTA applications were filed in respect of office and clerical, service and paramedical bargaining units.
The complaint arises out of certain alleged events in connection with the August 23, 2000 representation votes ordered by the Board in the PSLRTA applications, pursuant to minutes of settlement between Niagara, SEIU, the Canadian Union of Public Employees (“CUPE”) and the Ontario Public Service Employees Union (“OPSEU”). For ease of reference, I shall refer hereinafter to this document as “the settlement”
The settlement contained a protocol for campaigning among the competing trade unions leading up to the votes on August 23, 2000. It is useful to set out the full text of this protocol, which is headed “Access”:
(i) The parties agree to the OLRB issuing an order to the Hospital to provide each union with a list of names and addresses of those employees on the voters' list(s) for the bargaining unit(s) in respect of which that union's name appears on the ballot, no later than three (3) weeks prior to the vote day. This information will be provided both in hard copy and on a computer disc.
(ii) Each union shall have access to existing union bulletin boards where they exist, or to a bulletin board designated by the Hospital where they do not exist for the purposes of displaying campaign materials at each of the Hospital's eight sites.
(iii) Each union shall have the opportunity to have a meeting of one and one-half (1-1/2) hours in duration at each of the Hospital's eight sites at such meeting rooms as shall be arranged through Human Resources.
(iv) Each of the unions shall have the opportunity to either:
(a) leaflet the entrances at each of the Hospital's eight sites from August 1 to August 22, 2000 with the understanding that there shall be no obstruction of any emergency or transportation vehicles at any of the entrances nor will there be any obstruction of persons seeking to enter or exit the entrances at the various sites; or
(b) set up and man a table within each of the Hospital's eight sites from 7:00 a.m. to 11:00 p.m. during the period August 1 to August 22, 2000 as shall be arranged through Human Resources.
It is common ground among the parties to the complaint that CUPE chose the leafleting option, and SEIU the table option, both described above, as their respective campaign methods of choice.
One of the representation votes involved a contest for the service bargaining unit between SEIU, the Canadian Union of Operating Engineers & General Workers (“CUOEGW”), the International Union of Operating Engineers, Local 772 (“IUOE”) and CUPE. The vote results were as follows:
No. of Ballots
SEIU: 568
CUPE: 471
CUOEGW: 7
IUOE: 2
Segregated ballots (not counted): 38
Spoiled ballots: 2
CUPE’s complaint concerns certain alleged behaviour on the part of SEIU and Niagara, and seeks by way of remedy, among other things, a declaration of a violation of the Act, the setting aside of the service unit representation vote of August 23, 2000, and the establishment of a new representation vote.
The complaint alleges that the Board, in its decision of July 12, 2000, made a ruling concerning the campaign protocol, which I have outlined in paragraph 4 above. Moreover, the complaint alleges that SEIU breached that ruling on two separate occasions: on August 22, 2000, by parking a clearly marked SEIU tractor trailer on one hospital site and soliciting support from employees at that site for at least three hours (CUPE says that this breached the protocol requiring a trade union to choose only one method of campaigning); and by doing much the same on August 23, 2000 at several hospital sites (in breach, CUPE maintains, of a Board order effectively banning solicitation on August 23, 2000, the day of the vote).
With respect to Niagara, CUPE alleges that it made Niagara’s representatives aware of these alleged SEIU activities, and that Niagara did nothing to end them.
In response to the complaint, SEIU requested by way of preliminary motion that the Board dismiss the complaint without a hearing on the basis that the complaint does not disclose a prima facie case that could lead the Board to exercise its discretion under the PSLRTA to set aside vote results. SEIU argued that subsections 23(18) and (19) of the PSLRTA limit the Board’s jurisdiction to set aside PSLRTA vote results to occasions where the Board is not satisfied that the results reflect the true wishes of the majority of the employees in the bargaining unit.
Subsection 23(18) and 19 of the PLSRTA are as follows:
23(18) No order of the Board appointing a bargaining agent shall be set aside on the ground of any defect or irregularity in a vote if the Board is satisfied that the results of the vote reflect the true wishes of the majority of the employees in the bargaining unit.
(19) The Board is not required to enquire into any allegation of a defect or irregularity in a vote if the Board is satisfied that, whether or not the alleged defect or irregularity existed, the results of the vote reflect the true wishes of the majority of the employees in the bargaining unit.
In support of its interpretation of subsections 23(18) and (19), SEIU relied upon the unreported Board decision in The Northwest GTA Hospital Corporation, Ontario (July 27, 1999; see Board Files No. 2875-98-PS, 0444-99-U and 0533-99-U). By letter dated September 28, 2000, counsel for SEIU advised that the Divisional Court had recently dismissed the judicial review application concerning the case.
The facts in Northwest GTA which are relevant for this matter were as follows. The Board ordered two representation votes in respect of a full-time service unit and a part-time service unit, and made certain directions regarding electioneering and access of the contesting trade unions to employees. The trade unions involved were CUPE, SEIU and CUOEGW. CUPE won the vote in the full-time service unit. None of the unions was able to garner a majority of ballots in the part-time service unit, and accordingly a sealed run-off vote was ordered.
SEIU brought an unfair labour practice complaint against CUPE and the employer, alleging improper electioneering activity leading up to the taking of the votes. The employer was alleged to have interfered with, and cut short a meeting sponsored by SEIU with employees, which meeting had been directed by the Board. With regard to CUPE, SEIU claimed that its rival breached the electioneering protocol ordered by the Board by leafleting on several more occasions and for longer than permitted by that protocol. It also alleged that CUPE had distributed a “doctored” campaign pamphlet purporting to be from the SEIU and urging voters to vote for CUPE.
The Board declined to inquire into the allegations of irregularities in the vote, and appointed CUPE as the bargaining agent in the full-time service unit. At paragraph 19 of the decision, the Board stated:
In this case the conduct complained of is excessive campaigning. This campaigning may well have influenced some voters in favour of CUPE. It may have annoyed others and caused them to vote against CUPE. Whatever its effect, the mere fact of campaigning in excess of the time permitted by the Board does not, in and of itself, lead me to the conclusion that voters were unable, in a secret ballot vote, to exercise their free choice as to their bargaining agent. Accordingly, I am satisfied that any breach with respect to the leafletting did not prevent the results of the representation vote from reflecting the true wishes of the majority of employees in the bargaining unit.
Turning back to the instant case, counsel for CUPE opposes SEIU’s preliminary motion, and argues that there is a fundamental difference between the allegations in the Northwest GTA case and the present case, in that the Board in the Northwest GTA case did not impose a “no solicitation” ban on the day of the representation vote. In addition, counsel submitted that the allegations in the Northwest GTA case were related to violations of hours for campaign access, which took place well before the day of the vote.
For the purposes of this decision, I am assuming, without deciding that all of CUPE’s allegations concerning the events of August 22 and 23 are true.
I am not persuaded that there is any substantial distinguishing feature between the case at hand and the Northwest GTA case. First, while most of the allegations in Northwest GTA concerned violations of hours for campaign access before the day of the vote, in fact there were allegations concerning conduct on the day of the vote itself. For purposes of its decision the Board assumed, without deciding, that all the allegations made by the complainant were true, including those pertaining to the day of the vote. Second, I do not accept the premise upon which CUPE distinguishes the two cases. I do not accept that the July 12, 2000 decision of the Board in the PSLRTA applications imposed a “no solicitation” ban on the day of the representation vote.
Assuming without deciding that there was a Board order incorporating the agreement of the parties concerning campaign protocol and access, no reading of paragraph 9 of the minutes of settlement, as set out in paragraph 4 above of this decision, leads to the conclusion that the Board ordered a no-solicitation ban on August 23, 2000. For that result, there would have to be clear words to that effect, or words indicating that the campaign was to have ended on August 22, 2000. Instead, the parties merely described what was permissible (and by inference what was not permissible) solicitation from August 1 to August 22, 2000. What was considered legitimate or illegitimate solicitation on the day of the vote is left unsaid. A ban on solicitation cannot be assumed.
Even if I am wrong in concluding that there was no solicitation ban on August 23, 2000, nevertheless, CUPE’s complaint is at core a complaint about SEIU campaigning in excess of what was permitted. According to CUPE, SEIU illegally chose more than one of the permitted methods of solicitation, and solicited when it was not allowed to. In short, the complaint is that SEIU’s campaigning was excessive. That was essentially the same issue dealt with in the Northwest GTA case. I would conclude, and repeat the words quoted above in the Northwest GTA decision, that excessive campaigning “does not, in and of itself, lead…to the conclusion that voters were unable, in a secret ballot vote, to exercise their free choice as to their bargaining agent.” That is not to say that the Board condones such behaviour. It does not. However, to the extent there was a breach by SEIU of the campaign protocol, I am not satisfied that such a breach of the character and nature described by CUPE calls into question the results of the representation vote. I am satisfied that the true wishes of the majority of employees in the service bargaining unit were reflected in those vote results.
Given the findings in paragraphs 19 and 20, the remedies sought by CUPE to set aside the August 23 vote and establish a new vote would not be ordered even if all of CUPE’s allegations were proved. That leaves remaining the remedy of a declaration of a violation of the Act. The alleged conduct on August 22, 2000, if true, might have given rise to a finding of a violation of the Act. However, the Board is not convinced that any compelling labour relations purpose would be served by inquiring further into this aspect of the complaint. For all of these reasons, I exercise my discretion not to inquire further into the complaint.
Turning now to the PSLRTA applications, the Board received representations from two employees on April 23, 2000 concerning essentially the same allegations made by CUPE in respect of SEIU’s solicitation activity on the day of the votes. On September 5, 2000, one of the two employees submitted further representations which amplified the concerns expressed in her earlier representations.
For the same reasons explained above in reference to CUPE’s complaint, the Board is satisfied that the objecting employee raised no allegations which, if proved true, would cast any doubt that the August 23, 2000 representation votes reflect the true wishes of the majority of the employees who cast ballots.
For these reasons, the Board will issue this decision without a hearing.
Having regard to the settlement, the Board finds that:
A1l employees of the Niagara Health System save and except supervisors, persons above the rank of supervisor, professional medical staff, registered and non-registered/graduate nurses, paramedical employees, office and clerical employees, interns, and students on co-op work terms.
For purposes of clarity, it is agreed and understood that the following classifications are excluded from the bargaining unit:
Accountant, Accounting, Analyst, Educator, Health Records Analyst, Web Site Administrator, Translator, Buyer, Health Records Administrator, Disability Management Consultant, all employees in Information Systems, all employees in Human Resources, all employees in Payroll and all persons covered by subsisting collective agreements.
For purposes of clarity, it is agreed and understood that the classification “Addiction Worker” is included in this Service bargaining unit,
constitute a unit of employees of the responding party appropriate for collective bargaining.
On the taking of the representation vote directed by the Board in respect of the service bargaining unit, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of SEIU.
Pursuant to section 23(3) of the PSLRTA, the Board appoints SEIU as the bargaining agent for the service bargaining unit.
Having regard to the settlement, the Board finds:
All Office and Clerical employees employed by the Niagara Health System save and except supervisors, persons above the rank of supervisor, students on co-op work terms, secretaries and/or Administrative Assistants for Managers and persons above the rank of Manager, Educators, Health Records Administrators, Health Records Analysts, Web Site Administrators, Translators, Buyers, Accounting Analysts, Disability Management Consultants, all employees in Information Systems, all employees in Human Resources, all employees in Payroll and all persons covered by subsisting collective agreements.
For purposes of clarity, it is agreed and understood that Ward Clerks and Ward Secretaries are Office and Clerical employees.”
constitute a unit of employees of the responding party appropriate for collective bargaining.
On the taking of the representation vote directed by the Board in respect of the office and clerical bargaining unit, more than fifty per cent of the ballots cast by employees in this bargaining unit were cast in favour of SEIU.
Pursuant to section 23(3) of the PSLRTA, the Board appoints SEIU as the bargaining agent for the office and clerical bargaining unit.
With respect to the paramedical bargaining unit, the Ontario Nurses’ Association (“ONA”) reserved the right to assert bargaining rights in respect of the positions of professional practice leaders and case managers, both of which are identified in the settlement as falling within the paramedical bargaining unit. Unless ONA files submissions with the Board by October 25, 2000 with respect to that issue, then pursuant to the settlement the Board will issue a decision finding that the following bargaining unit constitutes a unit of employees of the responding party appropriate for collective bargaining:
All paramedical employees employcd by the Niagara Health System save and except supervisors, persons above the rank of supervisor, students employed during a school vacation period, students on co-op work terms, interns, educators and clinical instructors and persons covered by subsisting collective agreements.
The term ‘paramedical employees’ includes Occupational Therapist, PPL (Professional Practice Leader) Occupational Therapist, Physiotherapist, PPL (Professional Practice Leader) Physiotherapist, Pharmacist, Radiology Technician, Radiology Technologist, Respiratory Technologist, Ultrasound Technician, Sonographer, Echo-Sonographer, ECG Technician, Dark Room Technician, Laboratory Technologist, Registered Technologist, Laboratory Technician, Laboratory Assistant, Pathological Technologist, Chiropodist, Audiologist, PPL (Professional Practice Leader) Audiologist, Social Worker, PPL (Professional Practice Leader) Social Worker, Psychotherapist, Psychometrist, Cognitive Therapist/Psychometrist, Addiction Counsellor Dietician, Orthopedic Technician, Registered Orthopedic Technician Registered Orthopedic Technologist, Clinical Dietician, Child and Family Counsellor, Respiratory Therapist, Child Life Worker, Speech Pathologist, MRI Team Leader, MRI Technician, Cardiology Technician, NC Cardiology Technician, Kinesiologist, Speech Language Pathologist, PPL (Professional Practice Leader) Speech Language Pathologist, Registered Technologist-Nuclear
Medicine and RT Clinical Instructor, Cardiology Technologist, Chart Reviewer, Biomedical Technologist, Biomedical Technician, Biomedical Engineering Tech, Project Co-ordinator, Case Manager, Senior Technologist, Registered Technician, Histology/Surgical/Pathology Tech, Cat Scan Charge Technologist, MLT/Technician, Librarian, Charge Technologist, Phlebotomist, Recreational Therapist.
The Board notes that, notwithstanding that the PSLRTA applications were filed in respect of the service, office and clerical and paramedical bargaining units, the intervention filed by the Ontario Nurses’ Association in these matters proposes the establishment of an additional single bargaining unit consisting of all registered and graduate nurses. That matter has not been dealt with in any of the Board decisions covering these matters. To the extent this issue remains to be referred to the Board, a separate application must be filed and delivered.
I am seized to deal with the submissions referred to in paragraph 31 above. In the event no submissions are provided, the Registrar is directed to return the file to me for a final decision regarding the paramedical bargaining unit and the appointment of the bargaining agent for the paramedical bargaining unit.
“Patrick Kelly”
for the Board