1202-01-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Service Employees International Union Local 220, Responding Party Trade Union v. Winston Park Retirement Home, Responding Party Employer v. Canadian Health Care Workers, Intervenor.
BEFORE: Christopher J. Albertyn, Vice‑Chair.
DECISION OF THE BOARD; August 3, 2001
This is an application under section 68 of the Labour Relations Act, 1995 (“the Act”) for a declaration that the applicant (“CAW-Canada”) has acquired the rights, privileges and duties of a predecessor trade union, the Service Employees International Union, Local 220 (“the SEIU”), pursuant to agreements (“the Agreement”) concluded between them.
Previous decisions were issued by the Board on July 24, 2001, July 26, 2001 and July 31, 2001.
Notice of this application has been sent to the responding party employer (“the employer”) and the SEIU. In addition, notices of the application and copies of the Board’s decisions have been posted on the employer’s premises in conspicuous places where they would most likely have come to the attention of individuals potentially affected by this application.
The Board has received the following responses and interventions to the application: from a group of employees; the SEIU, the employer and the Canadian Health Care Workers (“CHCW”).
The group of what appears to be nine employees have merely sent a fax to the Board and not filed an intervention in compliance with the Board’s Rules. They indicate that they do not want a representation vote until they can find out more about the CAW-Canada. They say, without detail, ‘several members felt the CAW-Canada was too aggressive when getting cards signed’. They appear also to say that the Agreement is in violation of the SEIU’s constitution.
The employer wishes the CHCW to be joined as an intervenor and joined in any representation vote between the CAW-Canada and the SEIU. It wants the employees to be able to choose not only between the SEIU and the CAW-Canada, but between those unions and the CHCW. The CHCW, which represents two other bargaining units in the employer’s establishment, has not requested that relief. It seeks the dismissal of the application on various grounds.
The employer has filed an extensive response. It contends the application should be dismissed without a representation vote for two principal reasons: the SEIU has not complied with its own constitution in reaching the Agreement; and the statutory preconditions for relief under section 68 have not been met. The effect of SEIU’s non-compliance with its constitution is that the Agreement, which is the foundation of the CAW-Canada’s application, is invalid. The application therefore has no validity and should be dismissed. The employer’s second argument is that the CAW-Canada is, in fact, not the successor of the SEIU because that entitlement is based on a condition which has not been fulfilled. The employer contends the Board should not allow itself to be used to achieve a purpose which is preliminary to a legitimate section 68 claim.
As regards the comments of the employees who together sent a fax to the Registrar, they will have an opportunity to express their views as to whether they wish to be represented by the SEIU or by the CAW-Canada, at least for the remainder of the term of the collective agreement between the SEIU and the employer. The views of the affected employees, expressed in a representation vote, will likely have a bearing on the Board’s consideration of this matter.
The Board notes the employer’s and the CHCW’s objections to the application and the employer’s request, in the event of there being a representation vote, to have the ballot box sealed. The objections the employer and the CHCW raise to the validity of the SEIU’s action in concluding the Agreement and to the Board’s consideration of this matter, given the precondition for the CAW-Canada’s possible acquisition of successor rights, can all be addressed at the hearing of this matter, which will follow in due course.
The Board is not persuaded that any useful purpose will be served by sealing the ballot box in the representation vote. In a successor rights application the Board may, under section 68(2) of the Act, properly take account of employee wishes through a representation vote.
A representation vote will be taken of the individuals in the following voting constituency:
all retirement home employees of Winston Park Retirement Home, carrying on business as the Village of Winston Park, in the City of Kitchener, save and except supervisors, persons above the rank of supervisor, graduate and registered nurses, office and clerical staff, and persons for whom any Trade Union held bargaining rights as of December 6, 1994.
Clarity Note:
For purposes of clarity, the Board notes the parties agreement that the Director of Food Services, Administrator, Director of Activation, Director of Resident Care and Assistant Director of Resident Care are persons above the rank of supervisor.
The vote will be held on August 8, 2001. Other vote arrangements will be as directed by the Registrar and set out on the attached “Notice of Vote”.
All the individuals in the voting constituency who had an employment relationship with the employer on July 23, 2001, the successor rights application date, are eligible to vote. Employees having an employment relationship on that 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
CAW-Canada or by the SEIU in their employment relations with the employer.
A copy of this decision is to be posted forthwith by the responding party employer in prominent places in the workplace where it is likely to come to the attention of employees in the bargaining unit. The posting is to last for a period of 30 days.
Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the CAW-Canada’s successor rights application, 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.
The matter is referred to the Registrar.
“Christopher J. Albertyn”
for the Board