United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the Untied States and Canada, Local 221 v. Prime Mechanical Inc.
File No.: 0839-00-R Date: December 28, 2001
Before: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; December 28, 2001
1In a decision dated November 14, 2001 in this file, the Board directed the parties to make representations as to the proper disposition of this case. For the reasons given in that decision, the Board concluded:
- It appears that the applicant has two choices. It can agree to count the ballots. If it fails to secure a majority of ballots cast, then the bar in section 10(3) may have a future application. It may choose to withdraw the application for certification, in which case section 7(10) will have a similar effect.
2The applicant, in its submissions, did not challenge the conclusion the Board had come to in respect of the Minutes of Settlement. Counsel did, however, suggest another way of approaching this application. She asserts that the membership evidence submitted represents evidence of membership on behalf of less that 40% of the list of employees in the bargaining unit as set out in the responding party’s response (or more accurately, in the agreed upon list of persons in the bargaining unit in the Minutes of Settlement). On this basis, she asserts that the application ought to be dismissed under section 8.1(5) paragraph 7. She further argues that no bar should be imposed on a discretionary basis under section 111(2)(k).
3The Board does not accept counsel’s submission. It is true that the responding party filed a notice under section 8.1. That raises an issue as to the entitlement of the applicant to a representation vote at all. In the Minutes of Settlement at paragraph 2 the parties agreed “The Applicant is entitled to a second representation vote”. This can only constitute an abandonment of the section 8.1 issue by the employer. This conclusion is reinforced by the statement at paragraph 6 that the Minutes of Settlement are entered into “in resolution of all matters between the parties arising prior to the date hereof”. There is no issue here as to the capacity of the parties under the statute to agree on that issue: an employer can choose to waive or withdraw its section 8.1 notice. Here, it essentially had the consent of the applicant to do so.
4Therefore the applicant is left with the two choices set out in the paragraph from the November 14 decision quoted above. The applicant did not, as it was directed to do, make a choice between the two options.
5Accordingly, this matter is referred to the Manager of Field Services to arrange for the counting of the ballots cast in the first representation vote. If the applicant seeks to withdraw the application before the ballots are counted, that request will be granted.
“David A. McKee”
for the Board