1951-01-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Central Park Lodges Ltd. Kanata Retirement Residence, Responding Party v. Canadian Health Care Workers, Intevernor.
BEFORE: Patrick Kelly, Vice‑Chair, and Board Members J. A. Ronson and R. R. Montague.
DECISION OF THE BOARD; October 23, 2001
1. This is an application for certification.
2. 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.
3. 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.
4. The responding party (or “CPL”) alleges that it is not the employer of the employees affected by this application, and that those individuals are employees of Central Health Services (“CHS”) and represented by another trade union, Canadian Health Care Workers (“CHCW”), who, it is alleged, is party to a collective agreement with CHS. Accordingly, CPL claims there are no employees in the applicant’s proposed bargaining unit. CPL did not propose a different bargaining unit than that proposed by the applicant, but it did contend that the applicant’s proposed bargaining unit could not be appropriate. CPL purports to give notice under section 8.1 of the Act.
5. CPL did not file a Schedule A or Schedule B list of individuals with its response. The Board is therefore unable to compare the membership evidence provided by the applicant as against the information that is usually provided by a responding party for the purpose of considering the section 8.1 notice.
6. CPL also takes the position that, pursuant to section 7(3) of the Act the Board is precluded from entertaining the application or ordering a representation vote. This contention appears to be based on the assertion of CHCW’s alleged bargaining rights and collective agreement. It is not clear to the Board how the contention that the existence of a bargaining relationship between another employer and another trade union deprives the Board of jurisdiction to deal with an application in respect of this applicant and CPL.
7. CHCW asserts that the Board cannot order a representation vote because the applicant has allegedly failed to establish forty per cent membership support in what CHCW claims is its (apparently broader) bargaining unit with CHS. This submission might have some merit were this a displacement application for certification. However, it is not such an application, and the test in section 8(2) is whether forty per cent or more of the individuals of the bargaining unit proposed in the application for certification appear to be members of the applicant. As we have indicated in paragraph 3 above, the applicant has met that test.
8. In response to the assertions of CPL and CHCW, the applicant wrote to the Board on October 22, 2001. It asks that the Board direct CHCW to deliver to the applicant a copy of the alleged collective agreement, which was filed with CHCW’s intervention but not delivered to the applicant. The applicant continues to maintain that the employer is Central Park Lodges Ltd. which may now be known as Central Park Lodges Inc. In the event the applicant is mistaken with respect to the identity of the employer, it requests the Board add Central Park Lodges Inc., CPL Inc., and CHS as parties, and it requests that the name of the employer be corrected as appropriate.
9. The Board directs CHCW to deliver immediately a copy of the alleged collective agreement between CHCW and CHS to the applicant and CPL. The Board declines to add Central Park Lodges Inc. or CHS as parties to this application. They have not been served with the application in advance of, or simultaneous with, its filing with the Board, as required by Rule 67 of the Board’s Rules of Procedure. In fact, there is no indication that the applicant has delivered the application to those entities at any time. With respect to adding CPL Inc. as a party, there appears to be no need to do so as the responding party has identified itself by that name in its response.
10. Given the assertion by both CPL and CHCW that the individuals affected by the application for certification are employees of CHS, CHS is entitled to notice of this matter. Accordingly, the Registrar is directed to provide CHS with a copy of this decision and a copy of all the filed materials in this file forthwith.
11. The issues with respect to the section 8.1 objection, the identity of the employer and the effect, if any, of the alleged bargaining relationship and collective agreement involving CHCW on this application may, if necessary, be referred to the panel of the Board assigned to the hearing of this matter.
12. The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Central Park Lodges Ltd. – Kanata Retirement Residence in Kanata, Ontario, save and except supervisors, persons above the rank of supervisor, registered nurses, office staff and students employed during the school vacation period.
13. The vote will be held on October 25, 2001. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
14. All individuals who had an employment relationship with the responding party in the voting constituency on October 15, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on October 15, 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.
15. 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.
16. In the circumstances, we direct that the ballot box from the representation vote be sealed. The ballots will not be counted until the Board so orders or the parties agree.
17. The Board notes that there is no completed Confirmation of Posting in this file. To the extent CPL 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 the Registrar in Confirmation of Filing of Application for Certification dated October 16, 2001, it is directed to do so immediately. These copies must remain posted for a period of 30 days. The responding party 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 by 12:00 p.m. on October 24, 2001.
18. 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 Forms referred to in paragraph 17 above. These copies must remain posted for 30 days.
19. 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, 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).
20. The matter is referred to the Registrar.
“Patrick Kelly”
for the Board