December 4, 2001
Directed to: Canadian Union of Public Employees, Local 838 - Brenda Kuzio/Debra Grimaldi, Rimbey Hospital and Care Centre - Karmen Fittis, Field Atkinson Perraton - Kent Brown, David Thompson Regional Health Authority - Lynette Grose
RE: An application for certification as bargaining agent brought by Canadian Union of Public Employees, Local 838, Red Deer, Alberta affecting David Thompson Regional Health Authority, Red Deer, Alberta - File No. CR-03007
[1] On November 16, 2001, a panel of the Labour Relations Board (Wallace, Anderson, Williams) heard this application for certification by Canadian Union of Public Employees, Local 838 (the "Union"). At the close of the hearing we dismissed the objections and ordered a representation vote. These are our reasons for so deciding.
[2] The Union applied to represent a bargaining unit of employees of David Thompson Regional Health Authority (the "Employer") described as "All employees when employed in auxiliary nursing care at the Rimbey Hospital and Care Centre". The Rimbey Hospital and Care Centre comprises an 85-bed chronic care wing and a 15-bed acute care wing. The two wings are connected and share a common entrance and many support facilities. The Union earlier applied to represent auxiliary nursing care employees in the chronic care wing only. On September 28, 2001, another panel of the Board dismissed that application on the basis that the bargaining unit applied for was not appropriate because it was not a facility-wide unit. The Board in this decision noted that any appropriate unit would not be "reasonably similar" to the unit the Union had applied for. On October 19, 2001, less than 90 days after the earlier panel’s decision, the Union filed the present application.
[3] The Employer objected to this second application. It contended that it was the "same or substantially the same application" as the one the Board dismissed on September 28 and so by s. 55 of the Labour Relations Code required prior consent of the Board, which the Union did not obtain. The Employer argued that whether units are reasonably similar to one another — the issue spoken to by the earlier panel — is a different question than whether successive applications are the same or substantially the same as one another. It argued that from the first application to the second there was no changes to the classifications covered by the bargaining unit and only a modest increase in numbers; overall, this was not a "fundamentally different bargaining obligation" than the one it had sought to obtain in the first case: see Teamsters, Loc. 987 v. Aluma Systems Canada Inc. [2000] Alta. L.R.B.R. 667.
[4] The Employer also objected that the Union had engaged in conduct intended to manipulate the voting constituency in its favour. It adduced evidence that on October 19, 2001, the date of the certification application, over twice as many casual employees as usual worked. The 11 casual employees on duty that day was the highest number in the calendar year to date. Most of these casuals obtained their shifts directly from full-time or regular part-time employees, who traded their shifts to the casuals according to the loose scheduling practices that are the norm at the Rimbey facility. There was hearsay evidence that an employee organizing for the Union solicited at least one employee to trade away her shift to a casual employee to allow the casual to vote. The effect of such scheduling practices, of course, is to make those casuals eligible to vote and to have their membership support count pursuant to the Board’s Voting Rules. This inflates the employee constituency, because full-time and regular part-time employees do not lose their eligibility by trading away their shifts.
[5] Initially the Employer contended that the Board should dismiss the certification application entirely on the basis that manipulation of the voting constituency is an "other relevant matter" that the Board may take into account to deny a certification application: Code, s. 37. By the time of the hearing, both parties had considered the implications of the Board’s recent decision in Bosco Homes, A Society for Children and Adolescents v. AUPE [2001] Alta. L.R.B.R. LD-030. The Employer at hearing amended its submission to ask that the Board not dismiss the application under s. 37, but merely use our discretion under the Board’s Voting Rules to rule ineligible the casuals that had become eligible by accepting a shift trade.
[6] We dismiss the Employer’s objections, for the following reasons.
[7] It is no doubt correct that similarity of bargaining units is a different thing than similarity of applications. An application for certification is: (a) a request by a union, (b) to be certified, for (c) a unit of employees, of (d) an employer. If any of these four elements of the application changes significantly between the first application and the second, it is very difficult to say that the second application is the "same or substantially the same" as the first. So, for example, if one union’s application fails and a different union applies for exactly the same unit of employees (and the second union is not an alter ego of the first), the second is not the same application as the first: see, e.g. USWA, Loc. 7226 v. Handleman Co. of Canada Ltd. [1988] Alta. L.R.B.R. 431; CUPE, Loc. 2158 v. Grande Spirit Foundation [1989] Alta. L.R.B.R. 78. If a union applies to be named a successor trade union and then files for certification within 90 days because the union merger has come under attack, the certification is not the "same application" because the objectives of the two applications are fundamentally different: e.g., USWA, Loc. 5885 v. Haven of Rest of Medicine Hat [2001] Alta. L.R.B.R. LD-018.
[8] However, cases like these are unusual. Most section 55 objections revolve around whether the same union has made a second certification application for essentially the same group of employees. That is the case here. All other elements of the two applications — union, employer, and certification as the objective — are identical. So, in this case, the similarity of the applications boils down to a question of how similar the bargaining units are between the two proceedings.
[9] We concur with the assessment of the first panel that a facility-wide unit is not reasonably similar to a unit restricted to the chronic care wing. This application would add to the previous unit a significant group of employees working in a completely different part of the Employer’s facility. These employees work under the different demands and routines of acute care practice. In our opinion, the addition of the acute care auxiliary nursing workforce will result in a unit with a "very different dynamic" than that contemplated by the first application: Teamsters, Loc. 987 v. Aluma Systems Canada Inc., supra. It follows that the Union’s second application is not "the same or substantially the same" as the first and the time bar imposed by s. 55 of the Code does not apply.
[10] Of the alleged manipulation of the employee constituency, we do not need to reach any conclusion on whether the trading of shifts was a scheme orchestrated by the Union. Even if that were the case, we would follow the thrust of Bosco Homes, supra, which says that the Board will not dismiss a certification application except in "extreme" cases. An extreme case is one where "the impact of the casual workforce on the vote is grossly disproportionate to their interest in the representational question". The impact of the casual workforce on this certification application does not come close to that threshhold. We would reject any application to dismiss the certification application using our discretionary power under s. 37 of the Code.
[11] The Employer, of course, is not asking us to dismiss the application, but only to bar certain of the casuals from voting. We fail to see any principled basis upon which we should apply our discretionary powers in this lesser way. One of the main thrusts of the Bosco Homes case is set out at the end of paragraph 10 of that decision:
In our view there could be few things so wasteful or futile as a Board practice that encourages litigation over the degree of interest particular casual employees have in their workplace and the degree of influence they should have in representational questions. Much of the value of eligibility rules lies in their certainty, and we should be reluctant to make them any less certain.
Certainty is a valid objective whether it is the overall fate of the certification application under s. 37 of the Code or eligibility of a given employee under the Voting Rules that is in issue. To the extent that the Bosco Homes approach attempts to avoid wasteful and unproductive litigation, it is equally valid when the litigation only addresses voter eligibility under the Voting Rules. We decline to bar the affected casual employees from casting ballots.
[12] All other requirements for a representation vote having been met, we direct that this application proceed to a vote. The file is remitted to the Board’s Officer to set the details of the vote in consultation with the parties.
J. Leslie Wallace, Vice-Chair