Ontario Labour Relations Board
0300-99-R International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local 357, Applicant v. Corporation of the City of Guelph, Responding Party v. The Canadian Union of Public Employees Local 973 and Local 241, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.
DECISION OF THE BOARD; January 13, 2000
This is a request of the applicant for reconsideration of the Board’s decision of October 14, 1999 in which it granted leave to withdraw the applicant’s application for certification. As a representation vote had been taken (and the ballot box sealed), the Board imposed a bar on any further application for certification by the applicant as a bargaining agent of the employees in the bargaining unit for a period of one year from the date of withdrawal, which is the date of the decision.
The application for certification was filed on April 27, 1999. The applicant sought to represent a craft bargaining unit of all stage employees.
By decision dated July 12, 1999, the Board, differently constituted, determined that in fact stagehands were already included in the bargaining units of the collective agreement between the intervenor and the responding party and rejected the applicant’s alternative submissions that either those bargaining rights were abandoned by the intervenor or were an accretion to the bargaining unit which was not properly acquired in the absence of any representational authority of the intervenor. The Board directed the parties to advise the Registrar how they wished to proceed with the application in light of the Board’s decision.
By letter dated October 7, 1999, counsel for the applicant wrote to the Board and stated:
Please be advised that the Applicant does not wish to pursue the above Application for Certification any further.
- As indicated in paragraph 1 above, the Board took the October 7, 1999 letter to mean that the applicant was withdrawing its application for certification, and accordingly the Board granted leave to withdraw and imposed the one-year bar. Subsection 7(10) of the Labour Relations Act, 1995 (the “Act”) provides as follows:
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.
The applicant takes the position that the Board should have dismissed the application for certification, rather than have granted leave to withdraw. The applicant states that it never intended to withdraw its application, and, in the circumstances of this case, expected the Board to dismiss the matter without the imposition of a bar. The main basis for the applicant’s position is that the panel of the Board which issued its decision of July 12, 1999 found that the full-time employees sought by the applicant to include in a bargaining unit for which it would have bargaining rights were indeed already represented by another trade union, and covered by a collective agreement expiring December 31, 1999. The Board made no determination with respect to the other part-time employees also sought by the applicant to be included in the bargaining unit. The applicant states that, in effect, the Board found the application for certification to be untimely. In these circumstances, i.e. an untimely application for certification together with the fact that the ballots have not been counted and union support was not tested, the applicant states that no bar to further applications for certification should be imposed. The applicant states that there is no labour relations purpose for the imposition of a bar.
The intervenor took no position with respect to the reconsideration request.
The responding party opposed the request for reconsideration.
Throughout the submissions contained in the applicant’s request for reconsideration, the applicant states that it never withdrew its application, nor did it specifically ask the Board for leave to withdraw. It is quite true that the applicant never used the word “withdraw” in its correspondence of October 7, 1999, or that it sought leave of the Board to take any further step. On the other hand, the applicant did not ask that the matter be dismissed, or that the matter be dismissed without the imposition of a bar. The applicant simply stated that it did not wish to pursue the matter any further. The Board concluded that the act of no longer pursuing the applicant’s initial objective equated to a withdrawal of its application. In the absence of any further amplification in the correspondence of October 7, 1999, this was a reasonable conclusion to reach. That the Board did so to the applicant’s apparent disadvantage is not a reason to reconsider the October 14, 1999 decision.
The Board declines to reconsider its decision of October 14, 1999.
“Patrick Kelly”
for the Board