International Brotherhood of Electrical Workers, Local Union 353 v. 1206468 Ontario Ltd. c.o.b. as Quadracon
File No.: 2560-99-R Date: July 14, 2000
Before: D. L. Gee, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
Appearances: Ursula Boylan and Larry Venning for the applicant; Jeffrey D.A. Murray and Leonard Feldt for the responding party.
DECISION OF THE BOARD
This matter is an application for certification.
On July 14, 2000, the Board heard a motion by the responding party that the Board bar the applicant from bringing the present application because the applicant had withdrawn an earlier application for certification as a result of having filed a defective A-74. The facts relied upon by the responding party in support of its motion are as follows.
On November 13, 2000, the applicant filed an application for certification. On November 16, 2000, the responding party delivered to the applicant and filed with the Board its response, inclusive of its list of employees in the bargaining unit on the date of application. On November 18, 2000, a Board decision directing the conduct of a representation vote on Monday, November 22, 2000 issued. In such decision, the Board noted that the applicant had filed a deficient A-74. On Friday, November 19, 2000, the applicant wrote to the Board and withdrew its application. At 5:11 p.m. on Friday, November 19, 2000, the Board faxed a letter to the responding party advising that the vote scheduled for Monday, November 22, 2000 was cancelled. On Tuesday, November 23, 2000, the Board issued a decision indicating that the application for certification was withdrawn with leave of the Board. On Tuesday, November 23, 2000, the applicant filed the instant application. The responding party filed its response and a representation vote was conducted in connection with the second application for certification on December 1, 1999.
The responding party asserts that it was put to unnecessary trouble and expense and lost valuable production time as a result of the applicant’s conduct. The responding party was required to retain counsel to respond to two applications each of which involved the compilation of a list of jobs and employees. The responding party suffered lost production when the first vote was cancelled so late on the Friday preceding the Monday vote that there was no way to advise the responding party’s employees. The responding party stresses that it was put to such cost and inconvenience as a result of an error that was completely avoidable. Further, the responding party asserts that it was not necessary for the union to withdraw the application and therefore, by doing so, the applicant unnecessarily put the responding party to additional cost and inconvenience.
The responding party distinguishes Board decisions such as Canadian Opera Company, [1999] OLRB Rep. 804 on the basis that the union withdrew upon receipt of information that it could not with reasonable diligence have had prior to receipt of the response. In the present case, the cause of the withdrawal was an error committed by the union that with reasonable diligence was completely avoidable.
Having considered the parties’ submissions, it is the Board’s determination that the responding party’s motion for dismissal ought to be denied. The Board has long permitted a union to withdraw an application for certification at any time prior to a vote without a bar unless manifest abuse of the Board’s process was demonstrated (see: Canadian Opera Company, supra, and cases cited therein). In the present case, there is no evidence that the error committed by the applicant in the present case was anything other than inadvertent. While it is regrettable that the error resulted in cost and inconvenience to the responding party a single error will not cause the Board to impose a bar.
The hearing with respect to this matter will continue on August 2, 2000 commencing at 9:30 a.m. at the Board’s offices located at 505 University Ave., Toronto, Ontario, 2nd Floor for the purpose of hearing the evidence and submissions of the parties with respect to the issue of whether the individuals challenged by the applicant, as set out in its submissions of March 30, 2000, who were issued a provisional certificate of qualification following the application date, or had expired provisional licenses on the application date, are properly on the list of employees.
This panel is not seized.
“D. L. Gee”
for the Board