Sonya ter Stege v. Ontario Public Service Employees Union (OPSEU)
[1994] OLRB Rep. October 1375
2125-94-R Sonya ter Stege, Applicant V. Ontario Public Sen'ice Employees Union (OPSEU), Responding Party v. Meaford Beaver Valley Community Support Services, Intervenor
BEFORE: Ken Pet ryshen, Vice-Chair, and Board Members 0. R. McGuire and K. S. Davies.
APPEARANCES: Sonya ter Stege, Stacie Mirrlees and Kim Martin for the applicant; Chris G. Paliare, Ed Ogibowski, Terry Moore and Mary McCauley on behalf of the Ontario Public Service Employees Union (OPSEU) the responding party; no one appeared on behalf of Meaford Beaver Valley Community Support Services.
DECISION OF THE BOARD; October 31, 1994
1The name of the responding party is amended to read: "Ontario Public Service Employees Union (OPSEU)", and the style of cause is further amended to add "Meaford Beaver Valley Community Support Services" as an intervenor.
2This is an application for termination of bargaining rights filed pursuant to section 58 of the Labour Relations Act.
3The Ontario Public Service Employees Union was certified on September 17, 1993 to represent a bargaining unit of the intervenor's employees. This application was filed on September 19, 1994, a little over one year from the date of the certificate. The parties have agreed that the application is timely.
4At the hearing on October 17, 1994, the parties requested the Board to decide two issues. The first is whether Judy Sullivan's name should be included on the list of employees for purposes of the count. The second issue is whether the Board should place any weight on a petition containing a single name that was faxed to the Board on the terminal date. The parties agreed on the facts giving rise to these issues and made concise submissions on each issue.
5Judy Sullivan was discharged by the intervenor prior to September 1994. At a hearing of a section 91 application on October 4, 1994, the Board directed the intervenor to reinstate Judy Sullivan. The applicant argued that Judy Sullivan's name should not be on the list of employees since she was not working when the petition was circulated. The Board ruled orally at the hearing that Judy Sullivan's name should be included on the list of employees for purposes of the count. The Act provides in subsection 1(2) that no person shall be deemed to have ceased to be an employee by reason only of being dismissed contrary to the Act. Upon being discharged Judy Sullivan did not lose her status as an employee. This is not a context in which the Board applies the 30/30 rule. If the Board did not take this approach, employees and trade unions would be deprived of rights under the Act as a result of the illegal conduct of an employer.
6The Board also ruled orally at the hearing on October 17, 1994 that it would not give any weight to the petition that was sent to the Board by fax. The applicant indicated that she called the Board and a man advised her that she could send the document by fax. The Board's Rules of Procedure are quite clear however that the Board will not receive a petition document by fax. The application form used for this application advises persons to consult the Board's Rules of Procedure. As the Board has noted previously, persons who rely on information from someone at the Board in situations such as this do so at their own peril.
7As a result of these determinations, the names on the petition filed in support of the application constitute 45.7% of those persons whose names appear on the list of employees for purposes of the count. The responding trade union filed evidence of re-affirmation and two of the persons who signed re-affirmations had previously signed the petition. If the re-affirmations were found to be a voluntary expression of employee wishes, it would reduce the applicant's support below forty-five per cent resulting in the dismissal of the application. Knowing these consequences, the applicant agreed that the evidence of re-affirmation filed by the responding party represented a voluntary expression of employee wishes. Accordingly, since less than forty-five per cent of the employees in the bargaining unit have signified in writing at the relevant time that they no longer wish to be represented by the trade union, the Board ruled orally at the hearing that this application is dismissed.