0954-01-R United Steelworkers of America, Applicant v. Stellarc Precision Bar Inc., Responding Party.
BEFORE: Brian McLean, Vice-Chair.
DECISION OF THE BOARD; October 26, 2001
This is a request for reconsideration of the Board’s decisions dated August 3, 2001 and September 6, 2001.
The Board’s September 6, 2001 decision certified the applicant to represent certain employees of the responding party. The Board’s August 3, 2001 dealt with certain allegations regarding the conduct of the representation vote held in this matter. The facts surrounding the conduct of the representation vote are fully canvassed in the Board’s decision dated August 3, 2001 as follows:
There is one issue remaining to be decided. The employer asserts that the Board ought to order a second representation vote because, in its view, the vote results are “tainted” and raise questions as to the reliability of the final result. The employer relies on the fact, that following the representation vote, the Labour Relations Officer who supervised the vote, asked the employer scrutineer to leave the room so that the Officer could discuss segregated ballots with the union scrutineer in an effort to resolve the issues which were then outstanding. The employer left the room. In doing so he left the union scrutineer and the Officer in the room with the then, unsealed, ballot box. The employer was out of the room for approximately seven minutes. The ballot box was then sealed. These facts are not disputed by the union.
The employer disagrees with the decision of the Board dated August 3, 2001. It also asserts that the Board ought not to have certified the applicant on September 6, 2001 when at that time the employer’s request for reconsideration of the earlier decision remained outstanding. The main ground (other than that the original decision was wrong) of the request for reconsideration of the August 3 decision is that the Board ought to have held a hearing, as it did not do, to deal with the employer’s objection, particularly given the nature of the objection.
Decision
Under section 8(8) of the Act, the Board is not required to hold a hearing to determine any issue surrounding an application for certification. Indeed, the Board’s Rules provide that the Board may not hold a hearing in any case where it is not necessary to do so.
Section 8(8) of the Act states:
(8) After the representation vote has been taken, the Board may hold a hearing if the Board considers it necessary in order to dispose of the application for certification.
Rule 46 of the Board’s Rules of Procedure state:
Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
Section 8(8) of the Act exists so that certifications are not delayed while the Board holds a hearing which it considers unnecessary. Rule 46 of the Board’s Rules serves a similar purpose in a more general context. In this case the Board did not hold a hearing because the allegations made by the employer did not merit one. In particular, there was no dispute about the facts which were before the Board in the August 3 decision, including the fact that the employer does not allege any wrongdoing on the part of the Labour Relations Officer. The parties had a full opportunity to argue their respective positions in writing.
There was also no need for a hearing to impress upon the Board the importance of the integrity of representation votes held under the Act. The Board agreed and agrees with the employer that it is extremely important that the public have confidence in the integrity of the voting process so that the true wishes of the employees can be ascertained. However, as noted in the Board’s earlier decision, the integrity of the Board’s voting process was guaranteed in this case by the fact that the Labour Relations Officer was present with the unsealed ballot box at all material times. Absent any allegations of wrongdoing by the Labour Relations Officer it was impossible for the ballot box to have been tampered with. Therefore, it was and is not necessary for the Board to hold a hearing in the circumstances of this case in order to allow the parties to argue the case orally.
It may be that the Board ought to have delayed issuing a certificate until the employer’s request for reconsideration was dealt with. However, there would be no benefit to reconsidering the Board’s September 6, 2001 decision at this stage because nothing about the request for reconsideration changes the fact that the union is certified to represent the employer’s employees.
The union alleges that the employer has failed to post the Board’s decision dated September 6, 2001. The Board accepts that there may have been confusion about the Board’s processes under the circumstances. However, that confusion should now be cleaned up. If the employer does not post that decision and this decision forthwith, the employer is directed to advise the Board why it has not complied with the Board’s Order and why the usual remedies for such non-compliance should not apply.
“Brian McLean”
for the Board