0102-00-R Canadian Union of Public Employees an its Local 2119, Applicant v. Perth and Smith Falls District Hospital; Smith Falls Ambulance Service; 1221839 Ontario Ltd. operating as Carleton Place/Richmond Ambulance Service; Almonte General Hospital; Ontario Public Service Employees Union, Responding Parties.
BEFORE: Bram Herlich, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
DECISION OF VICE-CHAIR, BRAM HERLICH, AND BOARD MEMBER, R. R. MONTAGUE: May 17, 2001
The Board is in receipt of a request for reconsideration filed by the Ontario Public Service Employees Union (“OPSEU”), one of the responding parties in this case.
In a decision dated April 2, 2001 the Board:
(a) found that there had been a sale of a business within the meaning of section 69 of the Labour Relations Act, 1995;
(b) found that the appropriate bargaining unit structure for the successor employer’s operation was one which included ambulance employees in the larger service unit; and
(c) directed that a representation vote be held to permit employees to select between OPSEU and CUPE to be their bargaining agent.
The Board is now in receipt of a Request for Reconsideration filed by OPSEU. It is the Board’s latter finding i.e. to direct the taking of a representation vote, which OPSEU asks the Board to reconsider.
In fact OPSEU has filed two reconsideration requests “in tandem”. The other request, which relates to the decision of the Board in Hotel Dieu Hospital (Board File No. 02111-00-R March 23, 2001) will, of course, be dealt with by the panel that issued that decision. In that case, the Board declined to direct a representation vote in circumstances which OPSEU asserts are indistinguishable from those in the instant case.
In OPSEU’s view, in both cases one of the competing unions had represented 83% of the employees in the post-sale bargaining unit prior to the sale. And yet in one case (Hotel Dieu) that appeared to be sufficient for the Board to permit that union to continue to hold bargaining rights in respect of the successor without the taking of a representation vote while in another (the instant one), that level of support did not preclude the taking of a representation vote.
In our view and while OPSEU characterization is at least arguably accurate, the two cases are readily distinguishable.
For while the assessment of roughly 83% membership support in the “dominant” union is common is both cases, it is the character, source and origins of the representation of the remaining 17% which accounts for the differing treatment in the two cases.
In the instant case, the origins of the representation of the 17% of employees formerly represented by CUPE are to be found (in their entirety) in the bargaining unit of the predecessor employer.
In the Hotel Dieu case, OPSEU, prior to the sale, represented ambulance employees employed by a combination of employers, only one of which was subject to the successor rights provisions of the Act.
Thus, in the instant case the Board viewed 16-17% of the resulting bargaining unit employees as, effectively, having been and continuing to be CUPE members.
By contrast, in the Hotel Dieu case, the Board viewed the bargaining rights OPSEU formerly held in respect of ambulance employees (currently employed by the successor employer but) formerly employed by employers subject to the Crown Employees Collective Bargaining Act as having been extinguished by the sale. That latter determination is neither necessary nor relevant in the instant application. It is, however, as a result of that perspective that the Board in the Hotel Dieu case determined that there was no need to hold a representation vote to include a union whose representation rights were limited to only 10/540 bargaining unit employees (10/144 ambulance employees).
In the instant case the union added to the ballot was found to represent 16 or 17% of the total bargaining unit (and 35% of all bargaining unit ambulance employees).
Given that disparity in numbers, it is not difficult to understand the opposite results on the question of whether or not to direct the taking of a representation vote in the two cases.
We see no reason to reconsider our original decision. This application is dismissed.
“Bram Herlich”
for the majority
DECISION OF BOARD MEMBER, J. A. RONSON: May 17, 2000
The request for reconsideration has no application to my dissent herein, and I have nothing further to add.
“J. A. Ronson”