[1992] OLRB Rep. April 495
1714-90-R The Society of Ontario Hydro Professional and Administrative Employees, Applicant v. Ontario Hydro, Respondent v. Canadian Union of Public Employees - C.L.C. Ontario Hydro Employees Union Local 1000, Intervener v. The Coalition to Stop Certification of the Society on behalf of certain employees, Objectors
BEFORE: Owen V. Gray, Vice-Chair, and Board Members G. O. Shamanski and B. L. Armstrong.
DECISION OF THE BOARD; April 6, 1992
This is an application for certification in which a pre-hearing representation vote was taken pursuant to a decision of the Board dated January 31, 1991. All ballots were segregated. A hearing was conducted on March 25, 1991 to receive the representations of all interested persons with respect to the order in which and procedure(s) by which the issues in dispute in this application should be heard and determined by the Board. Following that hearing, by letter dated April 8, 1991, representatives of The Coalition to Stop Certification of the Society ("the Coalition") alleged that Ontario Hydro had permitted the use of the internal mail system by the Society in contravention of section 64 of the Labour Relations Act ("the Act") and that the Society had used that system to solicit membership in support of certification in what the Coalition alleges is a violation of section 71 of the Act. They asked that the Board exercise its discretion under section 89(4) to inquire into that complaint and, by way of remedy, direct Ontario Hydro to provide the Coalition with full access to the internal mail system under the same conditions as the Society.
The Board's decision with respect to the many issues reviewed at the hearing of March
25, 1991 and to the Coalition's complaint of April 8, 1991 stood reserved when, in July 1991, the applicant advised the Board that it had entered into an agreement with the respondent employer to engage in a process of negotiation and mediation with respect to outstanding issues in this application. It requested that no further hearings be scheduled pending completion of that process. That request was not opposed by any interested party. We were not asked to deliver a decision with respect to any of the matters addressed at the hearing of March 28, 1991 or in the Coalition's letter of April 8, 1991. We heard nothing more from any interested party until December 1991.
By letter dated December 3, 1991, an affected employee, Tom Stevens, wrote to the Board with reference to the contents of an "attached bulletin" published by the applicant. He referred to an agreement and proposed vote of employees. He asked the Board to "order the Society and Ontario Hydro to desist in this extra-legal proceeding" and give some direction as to the way any vote might be conducted to determine employee wishes. The "attached bulletin" was not attached to or enclosed with the letter. It was later received from Mr. Stevens under cover of a letter dated January 10, 1991. The bulletin, which was dated November 18, 1991, referred to an agreement between the applicant and respondent pursuant to which the respondent was prepared to recognize the applicant as collective bargaining agent for certain employees for purposes of the Act if the agreement was ratified by a vote of employees to be conducted by the applicant. It said such a vote was to be conducted between December 6, 1991 and January 13, 1992. It appears that the vote was essentially complete by the time the Board received the enclosure missing from Mr. Stevens' initial letter.
In a facsimile transmission dated January 22, 1992, and captioned with reference to this application, counsel for the applicant wrote that
All outstanding representational issues relating to Ontario Hydro and the Society have been resolved on the basis of an executed voluntary recognition agreement which has been ratified in a vote of all employees in the agreed upon bargaining unit.
In the circumstances we seek leave of the Board to withdraw the above-noted application for certification.
This was circulated, for comment, to all those who had expressed an interest in participating in this application, including Mr. Stevens. Responses have been received from Mr. Stevens, and from Mr. Crampton on behalf of the Coalition.
Mr. Crampton's response, a letter dated February 14, 1992, expresses a number of concerns, as well as a belief that some of those concerns might be the subject of other proceedings under the Act. He does not ask that the Board address those concerns or any of the matters raised by the Coalition earlier in these proceedings. In the end, his letter states that "[t]he Coalition agrees to the withdrawal of application 1714-90-R."
In his response, a letter of February 13, 1992, Mr. Stevens reiterates his earlier requests that the Board continue addressing the issues earlier raised in these proceedings, particularly the question of who is "managerial" and who is not. He also asks that we require a "real debate" and a further, supervised vote before affected employees become subject to a "Rand formula" provision in the agreement between the applicant and the respondent.
We are not being asked to approve the agreement referred to in the letter from counsel for the applicant. The applicant's request is simply that it be given leave to withdraw its application for certification. The only issues to which such a request would ordinarily give rise are whether the application should, instead, be dismissed and, if so, whether there should also be a bar to any further applications within the next six months. Having regard to the stage these proceedings had reached when the applicant made its request, the customary response (as the applicant undoubtedly knows) would be to dismiss this application without a bar. That response would not adversely affect any legal rights Mr. Stevens or any other interested party may have in relation to the circumstances surrounding the applicant's request to withdraw.
It is difficult to imagine any circumstances in which it would be appropriate for the Board to require an applicant for certification to pursue an application it did not wish to pursue. It would not be appropriate to do so merely because the Board had in hand a good deal of the information necessary to dispose of the application. And lest Mr. Stevens' misimpression in this regard is shared, it must be said that the Board was not in that position when the applicant made its request: it would have taken years to hear and determine all the issues which were in dispute between the parties at the time of our last hearing in this matter.
Having regard to the stage it had reached when the applicant requested leave to withdraw it, this application is dismissed.