[1983] OLRB Rep. November 1938
1556-83-R Mr. Emilio Campea and Mr. George Ohinan, Applicants, v. United Steelworkers of America, Respondent
BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.
DECISION OF THE BOARD; November 21, 1983
This is an application for reconsideration of a decision of the Board dated October 27, 1983. In order to put this request for reconsideration in its proper context, it is necessary to briefly review the events preceding that decision.
On October 11, 1983, the applicants filed an application pursuant to section 57 of the Labour Relations Act seeking termination of the respondent union's bargaining rights. That application was processed in accordance with the Board's usual practice and notice thereof was given to the respondent. By letter dated October 20, 1983, received by the Board on October 26, 1983, counsel for the respondent union wrote to the Board as follows:
I acknowledge receipt of the Notice of Application for Declaration Terminating Bargaining Rights and of Hearing dated October 14, 1983 and note that a hearing has been scheduled in this matter on Monday, November 14, 1983.
Pursuant to Section 57(5) of the Act, I am instructed to advise that the United Steelworkers of America does not desire to continue to represent the employees in the bargaining unit herein.
In these circumstances, I would appreciate it if you would advise of the cancellation of the aforesaid hearing.
Section 57(5) of the Act reads as follows:
Upon an application under subsection (1) or (2), where the trade union concerned informs the Board that it does not desire to continue to represent the employees in the bargaining unit, the Board may declare that the trade union no longer represents the employees in the bargaining unit.
- In view of the letter from the respondent abandoning bargaining rights pursuant to section 57(5) of the Act, on October 27, 1983, the Board issued a decision formally terminating the respondent's bargaining rights. This generated two further letters from counsel for the respondent dated November 7 and November 8, 1983. They read as follows:
November 7, 1983
I acknowledge receipt of your letter dated October 26, 1983 advising of the cancellation of the hearing scheduled for November 14 as a result of the content of my letter dated October 20, 1983.
I am now instructed to request that the Board reschedule this matter for hearing. The respondent union does desire to continue to represent the employees in the bargaining unit. We no longer ask that section 57(5) be made operative and we shall seek instructions as to whether we shall agree to a representation vote.
Thank you very much for your consideration in this matter.
November 8, 1983
I acknowledge receipt today of your letter dated November 3, 1983 with which was enclosed the decision of the Board in this matter dated October 27, 1983.
The respondent respectfully requests that the Board reconsider this decision pursuant to Section 106 of the Act.
Unfortunately, it was not until yesterday when the undersigned wrote to the Board withdrawing the contents of my letter dated October 20,1983 that the respondent became aware that in fact there was some substantial doubt as to whether a majority of employees no longer desire to be represented by the respondent. My letter dated October 20, 1983 was based upon inaccurate information and as a result I am instructed to request that the Board reconsider its decision which terminated our bargaining rights.
The respondent desires to agree to the taking of a representation vote and urges the Board to amend its decision accordingly.
Thank you for your attention.
Decisions of the Board are intended and expressed by the statute to be "final and conclusive for all purposes". The power of reconsideration is an extraordinary one which should not be lightly exercised. There is nothing in the submissions of the respondent which could not, with the exercise of due diligence, have been put before the Board earlier or at the hearing scheduled in this matter for that very purpose. The respondent was the bargaining agent for the subject employees until such time as the Board terminated those bargaining rights; moreover, the Board's decision to that effect was apparently only received by the respondent on November 7, 1983. We find it a little difficult to understand why it was not until November 7, 1983 that "the respondent became aware that. . .there was some substantial doubt as to whether a majority of employees no longer desire to be represented". The union itself was aware of the proceeding having been sent notice thereof on October 14, 1983; and there were only a total of four employees listed by the employer as being in the bargaining unit. One can only infer that the respondent made little or no effort to canvas their views prior to instructing counsel. In any event, the adequacy or otherwise of counsel's instructions or the respondent's investigation in no way diminish the thrust of its submission that it was abandoning its bargaining rights pursuant to section 57(5) of the Act. It may well be having second thoughts now about giving up its bargaining rights, but that is no basis for reconsideration. We reiterate that if a party were permitted to reopen a proceeding because positions which it took reflected inadequate investigation or hasty or incomplete instructions to its counsel, few decisions of the Board would ever be final.
The request for reconsiderations is dismissed.
After the above was written, but before the Board's decision was actually issued, the Board received another letter from counsel for the respondent dated November 14, 1983. It reads as follows:
Further to our request for reconsideration in this matter, I wishto draw to the Board's attention the fact that Form 19 "Notice to Employeesof Application for Declaration Terminating Bargaining Rights and of Hearing" which was forwarded to the employees of Armstrong Jones Ltd. by the Registrar of the Board and was dated October 14, 1983 did not containa date in paragraph 3 thereof for the fixing of a terminal date for the application. Further, the form did not contain a date in paragraph 8 thereof with respect to a hearing.
The respondent respectfully submits that in the circumstances where the Form 19 contained the apparent defectsas set out above, it is appropriate for the Board to exercise its discretion pursuant to Section 106 of the Act and reconsider its decision terminating the bargaining rights of the respondent herein, notwithstandingour early advice to the Board.
The reason for the early advice to theBoard dealt directly with the fact that the employees, and in particular a union steward, was misadvised by the Form 19 which resulted in further mis-communication to counsel.
Thank you very much for your attentionto this matter.
We have considered the contents of this letter. The fact is, that whatever notice may have been given to the employees of Armstrong Jones Ltd. and whatever its defects, proper notice was given directly to the respondent union itself - as the letter of October 20, 1983 from its counsel clearly indicates. Moreover, it is the union and not the employees who have a right to invoke section 57(5) of the Act, and if the union chose to do so hastily or on inadequate information it must bear the consequences of such actions. Indeed, the fact that it took almost a month to "discover" the alleged defects in the notice to employees serves merely to underline that the respondent was apparently prepared to invoke section 57(5) of the Act on the basis of what was then before it - however inadequate that information might subsequently turn out to be. It did not have to do so. Had it remained silent, the case would have proceeded to a hearing and, if the requirements of section 57 were met, a representation vote would have been directed. But once having unequivocally abandoned its bargaining rights pursuant to section 57(5), we do not think it can resile from the consequences of its decision.
There is nothing in the most recent letter from the respondent which prompts the Board to reopen this proceeding for a hearing de novo or in any other way reconsider the Board's decision of October 27, 1983, terminating the respondent's bargaining rights. If the employees wish to be represented by the respondent or any other union in the future, the statute provides the means for them to accomplish that objective.