Ontario Secondary School Teachers' Federation v. The Wentworth County Board of Education
[1988] OLRB Rep. October 1132
0700-88-R Ontario Secondary School Teachers' Federation, Applicant v. The Wentworth County Board of Education, Respondent v. Ontario Public School Teachers Federation, Intervener
BEFORE: Patricia Hughes, Vice-Chair, and Board Members I. Trim and C. McDonald.
DECISION OF THE BOARD; October 20, 1988
By a decision dated August 2, 1988, the Board directed the taking of a pre-hearing representation vote in this application for certification and further directed that the ballot box be sealed. The vote was taken on September 8, 1988, but, pursuant to the Board's direction, was not counted.
In a letter dated September 28, 1988, counsel for the applicant sought leave to withdraw its application or, in the alternative, if it dismisses the application, that the Board not exercise its discretion to impose a six-month bar on the union's making a subsequent application because of "the unusual nature of the bargaining unit and the difficulty to the applicant of ascertaining the number of employees in this unit".
In light of Practice Note No. 7, the Board sought the submissions of the other parties with respect to the applicant's request. The intervener notified the Board that it had no submissions to make. The respondent, however, submitted that the applicant was aware of the unusual nature of the proposed bargaining unit when it made the application and for that reason and since a vote had been held, the Board should dismiss the application with the imposition of a six-month bar.
Practice Note No. 7 provides at paragraphs 5 and 6 that
Where, on an application for a pre-hearing representation vote, after an examiner has been appointed and has met with the parties, an applicant requests leave to withdraw its application, the Board in its endorsement has noted the request to withdraw and has dismissed the application. See Lake Simcoe Ice & Enterprises Limited, [1963] OLRB Rep. June 159.
Where a request for leave to withdraw is made by an applicant after a vote has been directed, the Board has dismissed the application and in its endorsement has drawn the attention of the parties to the decision of the Board in Mathias Ouelleae, [19551 55 CLLC ¶18,026.
It also provides that where the other parties agree to a request to withdraw made at a hearing, "leave to withdraw will be granted".
Lake Simcoe Ice, supra, makes it clear that it is the stage of the process which warrants the dismissal, but there is no explanation in that case of why the stage matters. Once a Labour Relations Officer has met with the parties, it can be presumed that the request for withdrawal has been prompted by the revelation of the applicant's position. Indeed, where that is obviously not the case, the Board may permit the withdrawal (see for example, Salvador Barraco, Board File No. 1270-86-R, in which the Board permitted the withdrawal because the respondent had not attended at the Officer's meeting); that will be the rare case, however, given the Practice Note (even in Salvador Barraco, it should be noted, there was no objection by the respondent to the withdrawal).
The thrust of Mathias Ouellette, supra, is that "a trade union should not be permitted to anticipate defeat in a representation vote and escape the consequences of defeat by seeking to withdraw its application after such a vote has been directed by the Board but before the vote has been taken". The Board stated in that case that the six-month bar will not be imposed where the vote has been directed but before the vote is taken, "but if the applicant union files a new application affecting the same employees within six months from the date when the application is dismissed, the onus will lie on the applicant to show that special circumstances do exist which would warrant the new application being entertained at that time".
These principles will not be applied if there is consent at a hearing to the withdrawal. At this stage of a pre-hearing representation vote, the written submissions of the parties are analogous to a hearing in a non-pre-hearing vote certification application. That is why the Board sought the submissions of the other parties. All the parties are entitled to rely on the Practice Note which has been published to permit the parties to conduct themselves in accordance with certain settled expectations. This does not mean that the Board will not depart from the Practice Note where the circumstances of a case are sufficiently unusual as to warrant a departure. It is on that basis that the applicant in this case sought withdrawal or the non-imposition of the bar.
Since the respondent has not consented to the withdrawal, the Board must decide whether it should apply its normal practice. We note that the vote has been taken and therefore the principle set out in Mathias Ouellette, supra, does not apply. We are not persuaded that the reason given by the applicant warrants a departure from the Board's usual practice and we are supported in this position by the fact that the union's apparent support at the time the application was made was vulnerable and would reach the required thirty-five per cent only if its position on the challenges was correct. More importantly perhaps (because the union could be put in that position simply by another party's raising challenges to nearly all the employees in the applicant's proposed unit), its best position was only slightly over the required percentage.
Therefore, leave to withdraw is denied and this application is dismissed.
The Board will not entertain an application for certification by the applicant with respect to any of the employees of the respondent in the voting constituency within the period of six months from the date hereof.
The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.