0608-01-R Canadian Union of Public Employees, Applicant v. Markham Stouffville Hospital, Responding Party.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD: June 19, 2001
1This is an application for certification in respect of part-time employees, commonly referred to as service employees in the hospital sector.
2By letter dated May 28, 2001, the applicant requested to withdraw the application, a day prior to the representation vote directed by the Board (differently constituted) in its decision of May 25, 2001. The applicant requested that the Board not impose a bar to a future application. The responding party (“the employer”) filed submissions in support of the applicant’s request to withdraw, but argued for the imposition of a bar pursuant to section 7(9) of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (“the Act”). The applicant filed submissions in response, opposing a bar.
3The employer argues that a bar should be imposed because of an alleged abuse of process by the applicant, or, in the alternative, because there is a valid labour relations purpose for such a bar. In terms of the employer’s claim of abuse of process, it points out that the applicant represented the employer’s full-time service employees, that the president of the full-time local was involved in the organizing drive of the part-time service employees, and as such, the applicant had special knowledge of the staff and operations of the employer. The employer goes on to suggest that what should be inferred is that the applicant must have known with some degree of precision the number of part-time service employees in the proposed bargaining unit. However, according to the employer, the applicant grossly understated the number of part-time employees for the purposes of extracting from the employer the identification of all the part-time employees and reinvigorating the applicant’s organizing campaign.
4In the alternative, the employer argues that the purpose of a bar is to instill a period of labour relations peace and allow for a period of respite following a certification drive, and argues that that principle be applied in this case through the imposition of a bar, although the employer would be content with a bar of less than a year’s duration.
5The applicant concedes that it underestimated the number of part-time employees, but it contends that the employer’s estimate is significantly exaggerated. The applicant alleges that the part-time employees work at several locations, and include casual employees whose work is not regularly scheduled, thus making it difficult for the union to estimate the total number of part-time service employees of the employer. The applicant also contends that this was the first application brought by the applicant in respect of these employees, and that, to its knowledge, it is the first application brought by any trade union for part-time service employees of the employer. It argues that the employer has not demonstrated any actual disruption as a result of the application. Even if a trade union uses the certification process to gather information which it would not otherwise have about an employer’s operation, that, the applicant states, is not a reason to impose a bar: see Sara Lee Bakery Canada [1996] OLRB Rep. May/June 480.
6The Board is not satisfied that the alleged conduct complained of by the employer constitutes an abuse of process. Moreover, the request to withdraw was made prior to the taking of the representation vote, and, in the absence of any other evidence to suggest otherwise, the wishes of the employees have not been put to the test. Thus, the considerations articulated in the Sara Lee case (and in several Board decisions since) for the imposition of a bar are not present in this matter. There was nothing in the employer’s submissions that suggests the applicant’s organizing campaign and application were, or were intended to be, unduly disruptive to the employer’s operations, or that they resulted in anything more than inconvenience.
7For these reasons the Board declines to impose a bar on a future application for certification pursuant to section 7(9) of the Act.
8The applicant’s request to withdraw the application is hereby granted.
9The employer is directed to post copies of this decision immediately in a location or locations in the workplace where it is likely to come to the attention of employees affected by this application. These copies are to remain posted for a period of 30 days from the date of this decision.
“Patrick Kelly”
for the Board