National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) v. Oakwood Retirement Communities Inc.
2399-01-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Oakwood Retirement Communities Inc. (Nursing Homes) cob as The Village of Wentworth Heights (Service Unit), Responding Party v. Canadian Health Care Workers, Intervenor.
2396-01-R National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. Canadian Health Care Workers, Responding Party.
BEFORE: Brian McLean, Vice‑Chair, and Board Members J. A. Ronson and H. Peacock.
DECISION OF THE BOARD; November 30, 2001
Board File No. 2399-01-R is an application for certification. Board File No. 2396-01-R is an application for termination of bargaining rights under section 64, 65 or 66 of the Labour Relations Act, 1995 (the “Act”).
It is alleged that the employer voluntarily recognized the intervenor in July, 2001 and they entered a collective agreement covering six nursing homes, one of which is the subject of this application. The Canadian Health Care Workers (“CHCW”) alleges that in October, 2001 it conducted a secret ballot vote among the employees of the nursing homes. It alleges that the vote had two purposes: to confirm the intervenor as the bargaining agent and to ratify the collective agreement. It asserts the employees voted yes and accordingly there is a valid collective agreement in place which makes the application untimely.
In its termination application, the applicant asserts that the nursing homes were not open at the time of the voluntary recognition agreement and the employer employed no employees. It also asserts that employees were told they could either ratify the collective agreement and obtain the wage rates therein or not ratify and obtain a lower wage rate. The applicant also asserts that they were not told that the representation vote was a vote on their representation by CHCW. It also asserts that the ballots was not done secretly or with any safeguards and the results of the vote were not announced.
If the collective agreement between CHCW and the employer is valid then the application for certification is untimely. However, if the applicant under section 64, 65 or 66 is successful, the application for certification is timely. Under these circumstances, it is prudent to hold a representation vote.
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.
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.
The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of The Village of Wentworth Heights Nursing Home, Hamilton, Ontario, save and except nurse managers, registered nurses, physiotherapists, occupational therapists, supervisors, foremen, persons above the rank of supervisor or foreman, and office staff.
The vote will be held on December 4, 2001. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
All individuals who had an employment relationship with the responding party in the voting constituency on November 27, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on November 27, 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.
There is a dispute between the parties about whether CHCW should be on the ballot. In our view, it should not be. If CHCW’s collective agreement is found to be valid then this application must be dismissed. On the other hand, if the applicant is successful in its section 64, 65 or 66 application, CHCW will have no basis to be placed on the ballot. Accordingly, 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. Under the circumstances, the ballot box will be sealed following the vote until the parties agree or the Board orders otherwise.
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 "Notice to Employees of Application for Certification". These copies must remain posted for 30 days.
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, other than status disputes, 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).
The matter is referred to the Registrar.
“Brian McLean”
for the Board