1055-00-R Service Employees International Union, Local 183 Affiliated with the S.E.I.U., A.F. of L., C.I.O., C.L.C., Applicant v. Rubidge Hall Retirement Residence, Responding Party.
BEFORE: Caroline Rowan, Vice-Chair, and Board Members J. A. Ronson and
R. R. Montague.
DECISION OF CAROLINE ROWAN, VICE-CHAIR, AND BOARD MEMBER
R. R. MONTAGUE; July 11, 2000
This is an 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").
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.
Although the responding party does not dispute 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. Furthermore, the responding party proposes a different bargaining unit from that proposed by the applicant and it contends that the applicant's bargaining unit could not be appropriate.
The Board finds that the bargaining unit described in the application could be appropriate. The Board also finds that the numerical difference between the parties is not significant since the employer agrees with the union's estimate of the number of individuals in the unit set out in the application for certification. In any event, the employer agrees that the ballots cast in the representation vote should be counted.
The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Rubidge Hall Retirement Residence, in the City of Peterborough, save and except supervisors, persons above the rank of supervisor, and those persons employed pursuant to the Ontario Government's Futures Program.
The vote will be held on July 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 July 6, 2000, the certification application filing date, are eligible to vote. Employees having an employment relationship on July 6, 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 is a dispute between the parties as to whether or not those employees presently covered by the collective agreement that expires December 31, 2000 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.
There is also a difference between the parties as to whether the bargaining unit should be described as including "all employees" or whether it should instead be restricted to "all maintenance, office and clerical employees". If any individual is in dispute as a result of such difference, such individual shall identify himself or herself as occupying a disputed position and such individual shall be entitled to cast a ballot. Any ballot cast by such individual shall be segregated and not counted until the Board so orders or the parties agree.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
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.
"Caroline Rowan"
for the majority
DECISION OF BOARD MEMBER J. A. RONSON; July 11, 2000
It would appear that if the employer agrees to count the ballots, having pleaded that section 8.1 applies, then there may be no bar if the union loses the vote. In the circumstances then, no vote should take place until the section 8.1 issues are dealt with at a hearing. If a vote is ordered, then at the least the ballot box should be sealed until the section 8.1 issues are resolved.
"J. A. Ronson"