3871-99-R National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW-Canada), Applicant v. Brouillette Manor 1230839 Ontario Limited, Responding Party v. Service Employees International Union, Local 210, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.
DECISION OF THE BOARD; March 30, 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.
In its intervention the intervenor requests that the application be dismissed on the following basis. On March 17, 2000, the applicant brought an application for certification in respect of the same bargaining unit: Board File 3757-99-R. The intervenor stated in its intervention in that application that the application was untimely as not being brought within the collective agreement open period. That application was withdrawn with leave of the Board on March 22, 2000. The current application, filed on March 24, 2000, is timely, but the intervenor submits that the Board should not consider it because the applicant had within its knowledge information relating to the collective agreement in question, and its expiry date when the applicant filed the first application. The intervenor requests that this application therefore be dismissed pursuant to section 7(9) of the Act. Section 7(9) states:
- (9) If the trade union withdraws the application before a representation vote is taken, the Board may refuse to consider another application for certification by the trade union as the bargaining agent of the employees in the proposed bargaining unit until one year or such shorter period as the Board considers appropriate has elapsed after the application is withdrawn.
The Board does not consider this to be an appropriate case for the exercise of its discretion under section 7(9) of the Act. The allegation that, in filing the first application, the applicant knew or ought to have known the collective agreement's expiry date is not, on its own, sufficient reason to bar the current application. The intervenor has not claimed any prejudice as a result of the filing of the second application following the withdrawal of the first. The Board declines to dismiss this application on the basis of the intervenor's argument on this point.
- The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Brouillette's Manor Limited at Tecumseh, Ontario, save and except supervisors, persons above the rank of supervisor and registered nurses.
The vote will be held on April 3, 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 24, 2000, the certification application filing date, are eligible to vote. Employees having an employment relationship on March 24, 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.
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.
As the Board stated in Delhi Nursing Home, Board File No. 3645-99-R, unreported decision of March 15, 2000:
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.
In light of the above, 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.
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 concerning the counting of the ballots described above will be heard on April 6, 2000 at 9:30 a.m. in the "Board Room", 2nd Floor, 505 University Avenue, Toronto, Ontario.
The matter is referred to the Registrar.
"Patrick Kelly"
for the Board