3660-99-R National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. H.J. McFarland Memorial Home for the Aged, Responding Party v. Service Employees International Union, Local 183, Intervenor.
BEFORE: Marilyn Silverman, Vice‑Chair, and Board Members J. A. Ronson and D. A. Patterson.
DECISION OF THE BOARD; March 16, 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:
all employees of the H.J. McFarland Memorial Home for the Aged in the Township of Hallowell, save and except supervisor(s), persons above the rank of supervisor, registered and graduate nurses, office and clerical staff.
The vote will be held on March 20, 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 13, 2000, the certification application filing date, are eligible to vote. Employees having an employment relationship on March 13, 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.
There may be a dispute between the parties as to the effect on the bargaining unit description of certain changes effected by municipal amalgamations. If necessary, this matter may be dealt with at a hearing. In addition there is a dispute between the parties as to whether or not the positions of co-ordinator should be included in the bargaining unit. If any individual holding such a position wishes to cast a ballot, the individual shall identify himself or herself as occupying a disputed position and such individual shall then be entitled to cast a ballot. Any ballot cast by such an individual shall be segregated and not counted until the Board so orders or the parties agree.
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.
The intervenor has made submissions in its intervention based on material and allegations substantially similar to those made in Delhi Nursing Home, Board File No. 3645-99-R decision dated March 15, 2000 (unreported). The Board had dealt with those submissions as follows:
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, 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.
“Marilyn Silverman”
for the Board