Ontario Labour Relations Board
2173-01-R National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW-Canada), Applicant v. Central Park Lodges Ltd. Retirement Residences REIT, Central Health Services cob as Colonel By Retirement Residence, Responding Party v. Canadian Health Care Workers, Intervenor.
BEFORE: Marilyn Silverman, Vice‑Chair, and Board Members J. A. Rundle and D. A. Patterson.
DECISION OF THE BOARD; November 8, 2001
1This is an application for certification. An intervention has been filed. The intervenor claims to represent at least some of the individuals who are the subject of the application.
2The responding party, Central Health Services (“CHS”), asserts that the other named responding parties, Central Park Lodges Ltd and/or Retirement Residence REIT, were not served with the application. CHS asserts that no vote should be held until these parties are served. CHS and the intervenor do not dispute that CHS is the employer of those affected by the application and CHS has provided a list of employees. In these circumstances it is not necessary to delay the representation vote until the other named parties have been served. The applicant is directed nonetheless to ensure that Central Park Lodges Ltd. and Retirement Residences REIT are served and that the Registrar is provided with copies of the Certificates of Service. The Registrar should add these parties as addressees in this matter.
3The 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.
4It 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.
5The responding party disputes the applicant's estimate of the number of employees in the applicant's proposed bargaining unit. Furthermore, the responding party proposes a different bargaining unit than that proposed by the applicant and it contends that the applicant's bargaining unit could not be appropriate. It gives notice under section 8.1 of the Act.
6The Board is not certain that the bargaining unit described in the application could be appropriate in view of these facts. There are issues as to whether the applicant may apply to be certified for a part of the intervenor’s bargaining unit if the intervenor has a valid collective agreement which the applicant challenges.
7The 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.
8There are two bargaining unit descriptions. One is that proposed by the applicant and the other is that of the CHS and the intervenor. The latter bargaining unit description is that proposed by the CHS and the intervenor. The Board will usually vote the larger unit and segregates the ballots of those that would not fall within the smaller unit. Accordingly the Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Colonel By Retirement Residence or Central Health Services in the Regional Municipality of Ottawa-Carleton save and except office staff, coordinators, and registered nurses.
9The vote will be held on November 13, 2001. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
10All individuals who had an employment relationship with the responding party in the voting constituency on November 5, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on November 5, 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.
11There is a dispute concerning the employees being referred to by the applicant and by the CHS (and the intervenor). Accordingly, the ballots cast by employees of Colonel By Retirement Residence shall be segregated from those cast by employees of CHS who are not employed at Colonel By Retirement Residence. In the event that any employee is affected by this dispute, their ballot shall be segregated and not counted until the Board so orders or the parties agree.
12There is a dispute between the parties as to whether or not the positions of supervisors and those above the rank of supervisor, clerical staff, dispatchers, persons above the rank of co-ordinator, professional nursing staff other than registered nurses, students employed during the school vacation period should be included in the bargaining unit. If any individual holding such a position wishes to cast a ballot, the individual shall identify himself or herself as occupying a disputed position and such individual shall then be entitled to cast a ballot. Any ballot cast by such an individual shall be segregated and not counted until the Board so orders or the parties agree.
13Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
14In light of the several issues which are not resolved and the nature of these issues, 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.
15The 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.
16Any 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).
17The matter is referred to the Registrar.
“Marilyn Silverman”
for the Board