3485-97-R; 3832-97-R International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 58, Applicant v. Toronto Symphony Orchestra, Responding Party v. The Corporation of Massey Hall and Roy Thomson Hall, Intervenor.
BEFORE: Brian McLean, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.
DECISION OF THE BOARD; September 5, 2000
1Board File No. 3485-97-R is an application for certification. Board File No. 3832-97-R is an application under section 1(4) of the Labour Relations Act, 1995 (“the Act”).
2The applicant has withdrawn the application for certification and the application under section 1(4) of the Act is proceeding to hearing. There is a dispute between the parties as to whether the Board should impose a “bar” on any subsequent application for certification. The parties have filed written submissions with the Board on the issue. This decision deals with that issue.
3The primary dispute is over the meaning to be given to section 7(10) of the Act. That section states as follows:
- (10) If the trade union withdraws the application after the representation vote is taken, the Board shall not consider another application for certification by the trade union as the bargaining agent of the employees in the proposed bargaining unit until one year has elapsed after the application is withdrawn.
4The union asserts that the words in section 7(10) “after the representation vote is taken” mean after the representation vote is held and the ballots are counted. Since the ballots have not been counted in this application, a representation vote has not been “taken” within the meaning of the Act and no automatic bar applies.
5The union takes a purposive approach to section 7(10). It asserts that the purpose of the section is to impose a bar when a union withdraws an application after the votes have been counted and it is clear it has lost or might well lose the representation vote.
6The Toronto Symphony Orchestra (“TSO”) asserts that the Board should apply the clear meaning of the words “after a representation vote has been taken” to mean after the employees cast their ballots in a representation vote ordered by the Board. Whether the ballots are counted or not is irrelevant, because the vote has been “taken”. Had the legislative intended that ballots were to be counted, they could have made such intent clear. The purpose of section 7(10) is to prevent repeated episodes of the disruption in the workplace that naturally occurs when a representation vote is held.
7The TSO provided the Board with a number of decisions in which the Board has applied a bar in circumstances similar to the cases before us. In Northam Development Corporation, [1997] OLRB Rep. Sept./Oct. 915, the representation vote was held but the ballots not counted. Because there was only one person in the bargaining unit, it was clear that the application must be dismissed, and the Board stated:
Where an applicant withdraws an application in these circumstances, the Board is required to impose a “bar” of one year. This would apply generally whether the ballots were counted or not following the representation vote. In our view, it would be an absurd result if an applicant could avoid a “bar” by having the application dismissed following the vote rather than seeking a withdrawal. In effect, an applicant would be in a better position with a dismissal following a vote as opposed to a withdrawal.
Having regard to the clear language of section 7(10), it would be inappropriate to permit a fresh application for certification from the applicant within a year of the date of application in this case.
[emphasis added]
8The other decisions provided to the Board all found that section 7(10) applied to a withdrawal without analyzing the issue in any great depth.
Decision
9Prior to the addition of section 7(10) to the Act, the Board’s practice was generally to impose a bar if a union withdrew an application for certification after a representation vote was held if the union’s withdrawal was designed to avoid defeat at the polls. The union’s argument in this case is an imaginative attempt to interpret section 7(10) in a manner consistent with the Board’s prior practice.
10However, in our view, the Board’s prior practice is no longer applicable in view of section 7(10). We come to this conclusion because of the plain meaning of the words “after the representation vote has been taken”. It is a significant stretch to imply from the words that the ballots cast in such a vote must be counted before the bar will be imposed. It appears that the Act makes a distinction between taking a representation vote and counting the ballots. For example, section 8(2) of the Act states that if 40% or more employees in the bargaining unit appear to be members of the applicant trade union “the Board shall direct that a representation vote be taken”. In view of the Board’s practice of segregating all or some of the ballots following any representation vote, the requirement of section 8(2) that a vote be “taken” cannot mean taken and the ballots counted.
11In addition, if we were to accept the trade union’s interpretation, section 7(10) of the Act could only apply to situations where a union withdraws after a vote is held and the ballots are counted but due to segregated ballots it is unclear whether the union has won or lost the vote. The Board is obligated to dismiss an application (and impose a bar under section 10(3)) if not more than 50% of employees in the bargaining unit vote in favour of the applicant. It seems absurd that the legislature would put its mind to such an unusual set of circumstances.
12Finally, were we to accept the trade union’s position, the Board would have to hold a hearing in each case to determine why the trade union withdrew its application. In our view, this makes no practical sense. Indeed, it is more appropriate to have a bright line test which is easily administered and provides certainty to the parties. Under this application, the purpose of section 7(10) is to avoid the disruption in the workplace that at least arguably occurs as a result of a representation vote.
13Accordingly, we find that section 7(10) of the Act applies where the employees cast ballots in a representation vote ordered by the Board pursuant to section 8(2) of the Act. 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 on which the application was withdrawn, which was May 10, 2000.
“Brian McLean”
for the Board