Canadian Telephone Employees’ Association v. Tele-Direct Media Inc.
File No.: 2236-98-R Date: January 25, 2000
Canadian Telephone Employees’ Association, Applicant v. Tele-Direct Media Inc., Responding Party v. Barbara Rotundi, Interested Party.
Before: Marilyn Silverman, Vice-Chair.
Appearances: Craig Flood and I. Jaworski for the applicant; Rob Bayne, John Lindstrom, Cindy Rennie and Andy Gaustsy for the responding party.
DECISION OF THE BOARD
1This is an application for certification filed pursuant to the Labour Relations Act, 1995 (“the Act”) filed on September 25, 1998. On November 10, 1998 the Board (differently constituted) made the following findings:
A representation vote was held on October 2, 1998. Thirteen people voted. Three ballots were segregated and not counted. Ten votes were counted. There were no spoiled ballots; four people voted in favour of being represented by the applicant for the purposes of collective bargaining; six voted against.
The three segregated votes are contested. Two of the three are contested on the basis of their status. The responding employer (“the employer”) contends that they are managerial, they fall outside of the bargaining unit and their ballots should not be counted; the applicant union (“the union”) contends they are employees, they fall within the bargaining unit and their votes should be counted.
2One segregated ballot was that of Barbara Rotundi (“Ms. Rotundi”). The basis for her ballot being segregated was a dispute between the parties as to whether she was an employee in the bargaining unit on the application date. The applicant accepted on the Report and Certification Worksheet that that Ms. Rotundi was not an employee in the bargaining unit and that her ballot would not be counted. Further to Ms. Rotundi’s request, the Board determined in its November 10, 1998 decision that Ms. Rotundi could make representations on her own behalf on this point.
3Specifically, the Board afforded Ms. Rotundi the opportunity to make representations on two points, namely why the Board should condone the late filing of her representations and why she contends she was an employee on September 25, 1998. These were the sole representations to be heard at the hearing scheduled for November 12, 1999.
4At the date and time scheduled for hearing Ms. Rotundi did not appear. Counsel for the applicant requested an adjournment on the basis that he had a conflict of interest and could no longer represent the applicant in this matter. The basis for his position was that Ms. Rotundi had telephoned him the previous night and told him she would not be in attendance at the hearing scheduled in this matter. Up until that time, preparations had been made for her attendance and there was no conflict between Ms. Rotundi’s interests and those of the applicant. Counsel advised that Ms. Rotundi would not permit him to share with the Board the reasons for her non-attendance.
5The adjournment request is made in order for the applicant to retain separate counsel to advise it and make a determination as to what it may wish to do.
6Counsel for the responding party strongly opposes the adjournment request. Counsel contends that this matter has beeen prolonged and that this is the second adjournment as a result of the unavailability of Ms. Rotundi.
7Having regard to the circumstances of this case, the Board declines to grant additional time to the applicant in order to deal with the issue of Ms. Rotundi’s lack of participation in this application. The only reason for the hearing was to consider the representations of Ms. Rotundi. She has not appeared nor has she provided the Board with any reason for her non-appearance. As a consequence of her non-appearance she did not provide any explanation for the late submission of her representations in this matter as was required in the Board’s November 10, 1998 decision. There are no reasons to grant the extension of time she sought. Therefore her representations are found to be untimely and shall not be taken into account.
8It is clear from the earlier Board decision that the applicant’s position concerning the inclusion of Ms. Rotundi’s ballot has already been heard and determined. Specifically paragraph 12 of the November 10, 1998 decision provides:
- In our opinion, the Union’s signing of the Report effectively waived its right to challenge admissions it had made therein (subject, of course, to exceptions which do not apply here). The Union is bound by the terms of the Report. The purpose of the acknowledgements which are contained in the Report is precisely to prevent a party from resiling from, or from seeking to alter, terms it has agreed upon. The Report is intended to bring finality to the issues that are resolved therein. The Board does not wish to allow parties to withdraw from undertakings they make in the Report because that would unnecessarily prolong certification proceedings which should be expedited. We conclude, therefore, that the Union is precluded from challenging the validity of the Report.
9The applicant has already been afforded the opportunity to make submissions on Ms. Rotundi’s employment status and their rights on this matter have been disposed of by the Board. Ms. Rotundi’s non-attendance results in her employment status being resolved. She was not an employee eligible to vote on the application certification date and her ballot will not be counted.
10Accordingly, even if the applicant were to succeed on the basis of the other two segregated ballots referred to in paragraph one above, they could not attain the requisite number of votes to result in being in a position to be certified. In this regard I refer to paragraph 10 of the November 10, 1998 decision:
- The Employer requests that the application be dismissed because of the Union’s agreement not to count Ms. Rotondi’s vote and, once it is discounted, even if the Union is successful on the two segregated ballots, the Union would not be in a certifiable position. Success for the Union on the other two ballots would take the Union to a 50% position, when it needs more than 50% to be certified.
11The application for certification is therefore dismissed.
12The Board will not consider another application for certification by the applicant as the bargaining agent of the employees in the bargaining unit until one year elapses from the date of this decision.
13The Registrar will destroy the ballots cast in the 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.
14The responding party is directed to post copies of the attached Appendix “A” where it is most likely to come to the attention of all employees who may be affected by this application. Appendix “A” shall remain posted for a period of thirty (30) days.
“Marilyn Silverman”
for the Board
Appendix “A”
The Labour Relations Act, 1995
NOTICE TO EMPLOYEES
Posted by order of the Ontario Labour Relations Board
Re: 2236-98-R Canadian Telephone Employees’ Association, Applicant v. Tele-Direct Media Inc., Responding Party v. Barbara Rotundi, Interested Party.
On the taking of the representation vote directed by the Board, not more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.
The application for certification filed on September 25, 1998 is dismissed.
The Board will not consider another application for certification by the applicant as the bargaining agent of the employees in the bargaining unit until one year elapses from the date of this decision.
The Registrar will destroy the ballots cast in the 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.