0434-01-R Health Care Council of Ontario (LIUNA), Applicant v. Riverine Crownridge Health Services 1259668 Ontario Limited, Responding Party.
BEFORE: Stephen Raymond, Vice-Chair.
APPEARANCES: Richard Blair, Leo D’Agostini, Kendra O’Brien and Kelli Bowbeer for the applicant; Mark A. Stone, Greg Freeman and Elizabeth McGrath for the responding party.
DECISION OF THE BOARD; August 8, 2001
This is an application for certification.
A representation vote was held on May 11, 2001. That vote resulted in a tied result. One ballot was segregated. A hearing was held on June 12, 2001. Prior to the hearing, the parties agreed to the following Agreed Statement of Facts.
OLRB File No. 0434-01-R
BETWEEN:
HEALTH CARE COUNCIL OF ONTARIO (LIUNA)
Applicant
- and -
RIVERINE (CROWNRIDGE) HEALTH SERVICES
1259668 ONTARIO LIMITED
Responding Party
AGREED STATEMENT OF FACTS
The Applicant and Responding Party rely upon the following agreed statement of facts:
Ms. Kelli Bowbeer commenced employment as a Registered Practical Nurse on December 12, 2000. She was employed as a permanent part-time employee.
While employed, Ms. Bowbeer worked the following shifts:
i) December 12, 2000: 4:00 p.m. – 12:00 a.m. – orientation
ii) December 15, 2000: 8:00 a.m. – 4:00 p.m. – orientation
iii) December 19, 2000: 8:00 a.m. – 4:00 p.m. – regularly scheduled shift
iv) December 23, 2000: 8:00 a.m. – 4:00 p.m. – regularly scheduled shift
v) December 24, 2000: 8:00 a.m. – 4:00 p.m. – regularly scheduled shift
vi) December 25, 2000: 8:00 a.m. – 4:00 p.m. – regularly scheduled shift
vii) December 26, 2000: 8:00 a.m. – 4:00 p.m. – regularly scheduled shift
viii) December 27, 2000: 8:00 a.m. – 4:00 p.m. – regularly scheduled shift
ix) January 2, 2001: 8:00 a.m. – 4:00 p.m. – regularly scheduled shift
x) January 6, 2001: 8:00 a.m. – 4:00 p.m. – regularly scheduled shift
xi) January 7, 2001: Did not work – called in sick
A copy of Ms. Bowbeer’s work schedule is attached.
Ms. Bowbeer’s last shift worked was January 6, 2001 from 8:00 a.m. to 4:00 p.m. Ms. Bowbeer has not worked at any time since January 6, 2001.
Ms. Bowbeer resigned from her permanent part-time position as a Registered Practical Nurse effective January 5, 2001. Ms. Bowbeer advised Mr. Greg Freeman, Administrator of the Responding Party, that she wished to return to her education studies and be transferred to a casual position. Greg Freeman required her to resign. Her resignation letter is attached. Ms. Bowbeer’s resignation letter indicated that she wished to continue working on a casual basis at the Riverine. The resignation letter indicated that the resignation was to be effective January 7, 2001 since she started her studies January 8, 2001. Ms. Bowbeer was placed on the casual employee list effective January 8, 2001 and remains on the list.
Ms. Bowbeer is currently engaged in a full-time educational program (Registered Nursing) at Loyalist College, Belleville, Ontario.
Ms. Bowbeer did remain on the Responding Party’s casual list. Her name was identified on the call-in procedure sheet attached. As of the hearing date, the procedure remains posted with Ms. Bowbeer’s name on it.
6A. As of the hearing date, Ms. Bowbeer’s name remains on a similar call-procedure sheet for Resident Care Attendant.
6B. As of the hearing date, Ms. Bowbeer’s name remains on the work schedule as a casual employee.
The Responding Party telephoned Ms. Bowbeer on two occasions to inquire as to whether Ms. Bowbeer wished to work a particular casual shift. The first occasion was on January 11, 2001. Ms. Bowbeer was telephoned at home, but there was no answer. Another occasion was May 5, 2001. Ms. Bowbeer was telephoned at home. Ms. Bowbeer indicated that she was unable to come to work on that occasion. Ms. Bowbeer did not attend at work at any time after January 6, 2001.
Ms. Bowbeer did not contact the Responding Party to request work at any time following her resignation from her permanent part-time position.
Ms. Bowbeer has not received her record of employment from the Responding Party.
Ms. Bowbeer worked at Lenadco Nursing Home from December 30, 2000 to mid-February, 2001 (regular part-time schedule).
The decision in this case and the argument of the parties centred on two decisions of the Board – Madeira Residential & Counselling Services Glendonwynne House, [1999] OLRB Rep. January/February 66 (“Madeira”) and Executive Marketing Services, Inc., [2000] OLRB Rep. March/April 197 (“EMS”).
In Madeira, the Board was faced with a situation in which it was to determine the eligibility of six casual employees to cast ballots in a representation vote. The Board set out the relevant employment information in paragraph six of its decision as follows:
We heard evidence of 1 witness, the employer's Executive Director, Ramsay Kane, we [sic] considered a document prepared by the employer, at the request of counsel to the applicant, setting out the hours worked by each of the disputed casual employees in the last year, the last quarter, and the last day worked to the end of December 1998. That information, with the addition of the date of hire can best be set out in chart form.
Name
Date of Hire
Hours worked Jan. 1998 to Dec. 15, 1998
Hours worked Oct. 1998 to Dec. 15, 1998
Last day worked
Leanne Cormier
6/27/96
796
40
11/4/98
Paul Zindros
8/22/97
124
0
8/29/98
Catherine Somers
6/17/98
360
64
11/1/98
Irene Bobrowsky
10/31/97
260
0
8/24/98
Terry Luxton
2/13/94
56
0
2/28/98
Linda DeOliveria
8/20/94
180
0
9/13/98
In determining that the employees should be able to cast ballots, the Board stated:
Given that this case deals with the particular circumstances of a group of casual employees, it is not the best one to set definitive rules about voter eligibility in all circumstances. However, some general comments are useful. Historically, the Board has sought to ensure that whether or not a union is certified is determined by employees who have a close connection to the workplace at the time the decision about unionization is being made. The "30/30 rule" it could be argued, is merely a means to further that goal. But in a vote based system for certification, it may be appropriate to return to the underlying goal, rather than the rule, particularly in a case like this where the employees are [sic] do not have a regular schedule, but still have an ongoing employment relationship. With respect to Mr. Zindros, Ms. Bobrowsky, Ms. Luxton and Ms. DeOliveria, both their employment history and Mr. Kane's evidence about his intentions with respect to them, support a finding of an ongoing relationship and sufficient connection to the workplace that they should be entitled to vote. With respect to Ms. Somers and Ms. Cormier, their employment history shows an even closer connection to the workplace, particularly around the time of the application. The only factor weighing against eligibility to vote is Mr. Kane's evidence that he does not intend to recall either of them to work, because of performance concerns.
The Board should be wary about permitting voting by employees who may never face the consequences of their choice, because they will never return to the workplace. For these reasons, the Board's typical decision ordering representation votes sets "... a reasonable expectation of their return to employment" as a condition of voter eligibility for those absent from work on the application date. However, in the circumstances of this case, the majority does not find Mr. Kane's evidence sufficiently compelling to tip the balance of Ms. Cormier's and Ms. Somers' history of ongoing employment. It is not that the majority disbelieves Mr. Kane. But in the absence of letters of termination or other actions that make concrete an end to the employment relationship, it would not be sound labour relations policy for Mr. Kane's evidence to "trump" the history of continued employment. To do so would invite opportunities to gerrymander the list of eligible voters, particularly in circumstances such as this where the employer can choose who is called in and when, and can "end" the employment relationship without signalling it to the employee.
We recognize that, to a certain extent, the majority has relied on the intentions of the employer to justify voter eligibility to employees, such as Ms. Luxton, who have not been in the workplace for some months. In this way, then, it could be argued that the Board is running the risk of relying on potential gerrymandering. However, the Board has decided to err on the side of being inclusive in deciding who is eligible to vote.
In EMS, the Board was also faced with a situation in which it was to determine the eligibility of six casual employees to cast ballots in a representation vote. The Board set out the relevant employment information in paragraph ten of its decision as follows:
The employer provided the Board with a chart showing the hours worked by the six individuals in the year leading up to the application for certification. In the same chart we were also given the hours worked by them in the period after the vote but - before the final days of hearing. The chart indicates the following:
Employee
Apri
May
June
July
Aug
Sept
Oct
Nov
Dec
Name
1998
1998
1998
1998
1998
1998
1998
1998
1998
Booker, Karen
8.02
Claxton, Erin
76.20
26.00
71.65
60.33
23.18
3.25
16.68
Downie, Katy
56.02
17.53
81.03
107.3
38.6
8.32
30.95
Nelles, Lesley
Robinson, Valerie
50.52
46.07
20.45
44.02
43.62
12.10
4.08
Sementilli, Frances
52.01
8.30
34.02
8.45
Employee
Jan.
Feb.
Mar.
April
May
June
July
TOTAL
Name
1999
1999
1999
1999
1999
1999
1999
HOURS
Booker, Karen
7.95
15.97
73.80
31.94
Claxton, Erin
3.90
3.78
281.19
Downie, Katy
13.72
7.50
61.40
369.62
Nelles, Lesley
7.87
8.00
12.12
15.87
Robinson, Valerie
7.65
8.15
228.51
Sementilli, Frances
8.1
11.18
7.48
49.37
122.06
Given the particular fact situation and the representation vote result in EMS, the Board focussed on the employment relationship of one particular individual – Ms. Valerie Robinson. The Board stated at paragraph sixteen of its decision the following:
Of the six individuals in dispute, the one whose relationship with EMS appears to be the most tenuous is Valerie Robinson. Ms Robinson was hired on May 2, 1998. As can be seen from the chart set out on page three, she worked steadily from May to November of 1998. However, between November, 1998 and April 1, 1999, the date of the application for certification, she did not work at all.
In determining that Ms. Robinson was not eligible to vote in the representation vote, the Board stated:
In determining voter eligibility the Board has also indicated that only employees with a stake in the future collective bargaining should have the controlling voice in the choice of bargaining agent (see in this regard London District Crippled Children's Treatment Centre, (1980) OLRB Rep. April 461).
In Madeira Residential & Counselling Services Glendonwynne House, [1999] O.L.R.D. No. 475, the context of a certification application, it was necessary to determine the eligibility of six casual workers to cast a ballot in the representation vote. In deciding this issue, it was noted that historically the Board has sought to ensure that whether or not a union is certified is determined by employees who have a close connection to the workplace at the time the decision concerning unionization is being made. Accordingly, in the Madeira decision the Board looked at whether or not the individuals in dispute had an ongoing relationship and sufficient connection to the workplace such that they should be entitled to vote.
Ms. Robinson worked for EMS in November, 1998, and did not work again until after the certification application date. The fact that she has worked a few hours since that time is not relevant as the employer is in control of her work opportunities. As such, if the Board were to attach weight to evidence of this nature it would invite gerrymandering on the part of the employer. While we are not suggesting that this has occurred in this case (as there is evidence that the workload increased in April, 1999), it is too self-serving for the employer to point to the fact that Ms. Robinson has worked since the vote was held, as indicative of a continuing or ongoing employment relationship.
After November, 1998, Ms. Robinson was working at Wal-Mart part-time, going to school and playing hockey. Commencing in January, 1999, she indicated that she had to concentrate on school. Although she continued to play hockey twice a week she no longer had a part-time job. She could not remember calling EMS to inquire about any hours of work between November, 1998, and the date of the application for certification. However, in March, 1999, when it appears that school was no longer her focus and she was ready to pursue part-time work again, she got a job at Bi-Way. There is no indication that she ever even contacted EMS at this point to see if she could obtain any work from them. If she truly was interested in pursuing an employment relationship with EMS, then it would have been logical to contact EMS when she was interested in working again. She could not remember doing so and in fact started working at Bi-Way instead.
Although Ms. Robinson testified that she thought that she would be returning to work for EMS after November, 1998, the fact is that she made no effort to do so (that she could remember). In determining whether or not Ms. Robinson had an ongoing employment relationship with EMS it is important to consider what actually took place rather than placing a great deal of weight on subjective intentions. Although the intention of an employee to return to work at some point in the future may be relevant in certain circumstances, we do not find this to be true in the case before us.
In the circumstances, we are satisfied that Ms. Robinson did not have a close connection to the workplace at the time the decision concerning unionization was being made. In the period leading up to the vote she did not have an ongoing relationship with or sufficient connection to the workplace such that her choice concerning union representation should determine the issue on behalf of those employees whose entitlement to participate in this decision is not in question.
Therefore, we hereby conclude that the ballot of Ms. Robinson should not be counted. Having come to this conclusion it is not necessary to determine the employment status of the other five individuals. Even if all five were found to be eligible to cast ballots in the representation vote, the results of the vote would be thirty-four ballots in favour of the union and 33 ballots against.
Taking the tests as enunciated by the Board in Madeira and EMS, it is important that the persons casting ballots in a representation vote have a “close connection to the workplace at the time that the decision concerning unionization was being made” and be in an “ongoing relationship” with the workplace.
Being the only person on a call-in list, even one that is as infrequently used as the one in this case, satisfies me that Ms. Bowbeer has an ongoing employment relationship with the workplace. However, the fact that she had never worked as a casual employee and the fact that she had not worked in any capacity for the employer in the four months leading up to the vote suggests that she does not have a close connection to the workplace at the time that the decision concerning unionization was being made. The decision to have a trade union represent employees in their employment relationship with their employer is a serious one. Ms. Bowbeer is not sufficiently connected to the workplace to permit her to contribute to the decision that is made by the employees.
On the taking of the representation vote directed by the Board, not more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.
The application is therefore dismissed.
The Board directs the parties’ and the employees’ attention to section 10(3) of the Act, as amended by the Labour Relations Amendment Act, 2000, S.O. 2000, c. 38 (Bill 139). Should an application for certification be filed within one year of the date of this decision, the effect, if any, of this decision and Bill 139 on that subsequent application may be determined, if necessary, at that time.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.
Meeting and hearing dates set previously are hereby cancelled.
The responding party is directed to post copies of this decision immediately, adjacent to all copies of the "Notice of Vote and of Hearing" posted previously. These copies must remain posted until the date that had been set for the hearing.
“Stephen Raymond”
for the Board