0839-00-R United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 221, Applicant v. Prime Mechanical Inc., Responding Party.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; November 14, 2001
1The decision of this Board dated October 2, 2001 is revoked. The Board was proceeding on the basis of the mistaken belief that the ballots cast in the representation vote held June 22, 2000 had been counted. They had not.
2The Board is still faced with the task of determining what to do with this file. In the application for reconsideration of the October 2, 2001 decision, the applicant put forward a number of submissions in that regard. These submissions would have been of greater assistance when the Board was first dealing with the file (most appropriately in response to the submissions of the responding party dated September 24, 2001), but can be dealt with at the present time.
3The applicant relies on the Minutes of Settlement which are reproduced in the decision of the Board dated July 23, 2001. These Minutes of Settlement are the work of the parties, not the Board. The Minutes do not, as asserted by the applicant, state that "the parties agreed that the results of the representation vote already held would be disregarded". The Act now provides for a very precise sequence of events in certification applications severely limiting the Board's discretion to fashion a remedy, even where the parties agree to one. It is not apparent to me that the parties are able, under the Act, simply to disregard the results of a representation vote in settling an application for certification.
4However, that issue does not arise. What the parties said was "The Applicant is entitled to a second vote." The applicant has not chosen to avail itself of the opportunity for a second vote. The time for doing so pursuant to those Minutes has passed. The Board is therefore left with an application for certification which has not been disposed of, and ballots that have not been counted.
5The applicant relies on paragraph 6 of the Minutes, which provides that the "Minutes of Settlement are entered into in full and final resolution of these Board proceedings and in resolution of all matters between the parties arising prior to the date hereof". The applicant asserts that this paragraph has the effect of terminating the application without further consequences. There is no provision in the detailed regulation of certification applications in the statute for simply terminating the application.
6It 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 chose to withdraw the application for certification, in which case section 7(10) will have a similar effect.
7The applicant is directed to make any further submissions it chooses on or before December 4, 2001. In these submissions, the applicant is directed, in the event that it accepts the above analysis, or if the Board concludes that those are the only options open to it, to state whether it wishes to count the ballots or withdraw the application.
8I am seized of this matter.
"David A. McKee"
for the Board