3906-99-R National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. Victorian Order of Nurses Thunder Bay & District Branch, Responding Party v. Service Employees International Union, Local 268, Intervenor.
BEFORE: Brian McLean, Vice‑Chair.
DECISION OF THE BOARD; April 11, 2000
This is a displacement application for certification.
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”).
The employees are currently represented by the intervenor.
It 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.
The Board directs that a representation vote be taken of the individuals in the following voting constituency:
The Employer recognizes the Union as the bargaining agent for all employees of the Victorian Order of Nurses Thunder Bay and District in the Districts of Thunder Bay, Rainy River and Kenora, employed as registered or graduate practical nurses, save and except supervisors, and persons above the rank of supervisor.
The vote will be held on April 13, 2000. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
All individuals who had an employment relationship with the responding party in the voting constituency on March 28, 2000, the certification application filing date, are eligible to vote. Employees having an employment relationship on March 28, 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.
Voters 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.
There may be a dispute between the parties as to whether the bargaining unit includes employees in the Districts of Rainy River and Kenora. The Board therefore directs that the ballots for employees in the Districts of Rainy River and Kenora be collected separately from those of employees in Thunder Bay and District of Thunder Bay.
The 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.
This application occurs as part of a much larger dispute between the applicant and the Service Employees International Union. In this regard, the Board in a decision dated April 6, 2000 (Board Files Nos. 3644-99-R, et al) determined that it was appropriate to proceed with these applications and count the ballots in the normal course. On April 7, 2000 the Service Employees International Union applied to the Divisional Court for a stay of the Board’s decision. That application was denied.
However, there is currently an application before the Board in which the Service Employees International Union is requesting that the ballot boxes in the applications which form part of the broader dispute remain sealed pending the outcome of certain proceedings before the Canada Labour Congress. Accordingly, out of an abundance of caution, the Board directs that the ballot box in this matter be sealed following the representation vote until the parties agree or the Board orders otherwise.
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 the "Notice to Employees of Application for Certification". These copies must remain posted for 30 days.
Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for certification, other than status disputes, 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).
The matter is referred to the Registrar.
“Brian McLean”
for the Board