1788-01-R Canadian Union of Public Employees, Applicant v. Trafalgar Lodge, Responding Party v. Mister D Health Management & Consulting Inc., Intervenor #1 v. Canadian Health Care Workers, Intervenor #2.
BEFORE: Patrick Kelly, Vice‑Chair, and Board Members J. A. Ronson and H. Peacock.
DECISION OF THE BOARD; October 5, 2001
This is an application for certification.
The Registrar has certified that the applicant had been found to be a trade union in an earlier proceeding under the Labour Relations Act, 1995 (the “Act”). Therefore, having regard to the Registrar’s certificate and section 113 of the Act, the Board finds that the applicant is a trade union within the meaning of section 1(1) of 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.
The responding party (“Trafalgar”) disputes that it is the employer of the employees affected by this application. The intervenor, Mister D. Health Management & Consulting Inc. (“Mr. D.”) claims that it is the employer, and it contends that the employees affected by the application are covered by a collective agreement (pursuant to a voluntary recognition agreement) to which it is a party together with the intervenor, Canadian Health Care Workers (“CHCW”). Indeed, both Mr. D and CHCW submit that the application should be dismissed as untimely. The applicant disputes the assertion that Trafalgar is not the employer in this matter, and in the alternative, gives notice of its desire to amend its applicaltion if Mr. D. is found to be the employer. The applicant also disputes the validity of the alleged voluntary recognition agreement. The identify of the employer, the applicant’s entitlement, if any, to an amendment (should it seek one) to its application, and the validity of the voluntary recognition agreement are issues to be dealt with by the panel of the Board assigned to the hearing of this matter.
Both Trafalgar and Mr. D. dispute the applicant’s estimate of the number of employees in the applicant’s proposed bargaining unit, and give notice under section 8.1 of the Act. Trafalgar contends that it has no employees in that proposed bargaining unit. Mr. D. puts the number of its employees at 96, compared to the applicant’s estimate of 42 employees. Neither Trafalgar nor Mr. D. filed Schedules A or B lists of employees. Thus, the Board is unable to compare the membership evidence provided by the applicant against information that is normally provided by a responding party in such an application.
The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees employed at Trafalgar Lodge in Oakville, Ontario, save and except the Executive Director, Director of Care, Activity Director and the Director of Food Services.
The vote will be held on October 10, 2001. 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 in the voting constituency on September 27, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on September 27, 2001, 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 applicant and Mr. D. as to whether or not office and clerical employees and maintenance staff 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 or not they wish to be represented by the applicant in their employment relations with the employer.
Because of the outstanding issues in this matter the ballot box is to be sealed. The ballots will not be counted until the Board so orders or the parties agree,
The Board notes that there is no completed Confirmation of Posting in this file. To the extent Trafalgar failed to make and post copies of the Application for Certification (Form A-1) and/or the Notice to Employees of Application for Certification (Form C-2) as directed by theRegistrar in Confirmation of Filing of Application for Certification dated October 2, 2001, it is directed to do so immediately. These copies must remain posted for a period of 30 days. Trafalgar is further directed to file with the Board a completed Confirmation of Posting verifying that the above-mentioned copies have been posted appropriately, and to do so before 12:00 p.m. on October 9 , 2001.
Trafalgar 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 Forms referred to in paragraph 12 above. 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.
“Patrick Kelly”
for the Board