1788-01-R Canadian Union of Public Employees, Applicant v. Trafalgar Lodge, Responding Party v. Mister D. Health Management & Consulting Inc. and Canadian Health Care Workers, Intervenors.
BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.
DECISION OF THE BOARD; October 24, 2001
CPL, c.o.b. as Trafalgar Lodge (“CPL”) and Canadian Health Care Workers (“CHCW”) have each filed a request for reconsideration of the Board’s decision of October 5, 2001 in which it directed the holding of a representation vote. Both CPL and CHCW allege that, due to the alleged existence of a voluntary recognition agreement between CHCW and Mister D. Health Management & Consulting Inc. (the entity claiming to be the employer of the employees covered by the application for certification), the application for certification brought by Canadian Union of Public Employees (“CUPE”) is untimely, and that, pursuant to section 7(3) of the Labour Relations Act, 1995, as amended (“the Act”), the Board had no jurisdiction to entertain CUPE’s application brought in respect of employees of Trafalgar Lodge. CPL and CHCW also raise issues concerning the form of the ballot that was utilized in the representation vote, and argue that due to defects in that form, the vote should be declared null and void.
We decline to reconsider our decision of October 5, 2001. The Board neither ignored nor determined the issue of the timeliness of the application for certification. In fact, the issue was identified in our decision and referred to the panel of the Board assigned to the hearing. If the application for certification is indeed found to be untimely, it will be dismissed. That will depend largely on the identity of the employer in this matter, and whether that entity is party to a valid voluntary recognition agreement with the CHCW in respect of employees affected by CUPE’s application for certification. We note the approach taken by the Board in Ontario Lottery and Gaming Corporation c.o.b. as Windsor Racetrack Slots, (Board File No. 2997-00-R, unreported decision dated January 17, 2001) where, notwithstanding the assertion that the application for certification in that matter was barred pursuant to section 10(3) of the Act, the Board ordered a representation vote. At paragraph 11 of that decision, the Board stated:
It is beyond dispute that a speedy representation vote in an application for certification that takes place within the time prescribed by section 8(5) serves one of the principal objectives of the Act found in section 2, paragraph 1, which states:
The following are the purposes of the Act:
- To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees.
In my view, conducting a representation vote and then determining all of the issues raised by the parties in the application permits the wishes of the employees who were in the bargaining unit that is the subject of the application to be recorded around the time the application was filed and not at some future indeterminate point when there [sic] wishes might well be affected by the passage of time or the conduct of the parties. Having a representation vote quickly minimizes the disruption and uncertainty that would be occasioned by waiting weeks, months or even years for the resolution of what can be quite complex and difficult litigation. See for example, Penegal Trim & Supply Ltd., [2000] OLRB Rep. March/April 332.
The same considerations articulated in the Windsor Racetrack case apply in the matter before us with respect to considering whether or not to delay a representation vote that the statute contemplates be conducted expeditiously. The issues raised in this application may give rise to lengthy litigation. The application may or may not fail as a result of the resolution of those issues. The ordering of the representation vote in this matter did not affect the resolution of those issues and does not determine the outcome of the application. What it did accomplish was the timely recording of the employees’ wishes that may or may not be relevant to the ultimate determination.
As for the form of the ballot, that is an issue that goes to the validity of the expression of the voters, and not to whether the vote should have been ordered. Whether the vote results express the true wishes of the voters is a matter than can, if necessary, be dealt with by the panel assigned to hear this matter.
The requests for reconsideration are dismissed.
“Patrick Kelly”
for the Board