Canadian Telephone Employees Association v. Certen Inc.
File No.: 0377-01-R Date: June 1, 2001 Ontario Labour Relations Board
Between: Canadian Telephone Employees Association, Applicant v. Certen Inc., Responding Party.
Before: David A. McKee, Vice-Chair.
Decision of the Board
1I issued a decision in this matter on May 23, 2001. When I did so I did not have before me the submissions filed by counsel for the responding party dated that same date. Having reviewed the submissions of the responding party, I am not persuaded that the Board should come to a different result, although certain issues raised by counsel deserve comment.
2Counsel for the responding party is quite correct in his submissions that the caselaw cited by the applicant is distinguishable and not particularly helpful to the issue before the Board. The responding party’s main argument is the assertion that, once a representation vote has been held, and if more than 50% of the ballots cast are cast in favour of the trade union, section 10(1) requires the Board to issue a certificate in all circumstances. Counsel asserts that the Board has no jurisdiction to do anything else, and that the certificate must now issue.
3With respect, that assertion is overly broad. There are clear examples of fact situations where, notwithstanding success by a trade union in a representation vote, a certificate may not issue, immediately or ever. If an employer has given a timely notice under section 8.1, and it is determined that the employer is correct in its assessment of the number of persons in the bargaining unit, the application will be dismissed notwithstanding the result in the representation vote: see Renaissance Fallsview Hotel, [1999] OLRB Rep.Nov./Dec. 1086. The Board frequently delays dealing with certain issues, leaving aside issues of the status of individuals and description of the bargaining unit, until after the results of a representation vote are known. The issues include the timeliness of the application (often a problem where the Hospital Labour Disputes Arbitration Act applies); whether the applicant has status to apply for the unit sought (a problem that occasionally arises in construction applications); whether a second vote should be held under section 11; whether the union lacks status or is ineligible to be certified pursuant to section 15; and where there are issues about the authenticity of some of the membership evidence filed. One possible result of a resolution of such issues against the trade union applicant will lead to a dismissal of the application. The results of the representation vote are not determinative.
4At the risk of over-generalization, it is probably fair to say that the submission of counsel for the responding party is correct, but only in circumstances where there are no other issues remaining in the application which could prevent the issuing of a certificate. The situation the Board dealt with in the Oxford Child and Youth Centre Woodstock Inc. case was one where there was no issue remaining in the application before the Board. There may have been an issue with respect to the possible outcome of an application before another body – in that case the Superior Court of Justice. However, that is not an issue which arose in the application before the Board. In that case there was nothing left for the Board to do but to issue the certificate. In the same way the Board will not await the outcome of an application for judicial review before completing a matter arising before it under the Labour Relations Act, 1995, including the issuing of a certificate.
5In this case there is an issue still remaining to be determined by the Board, i.e. whether the Board has constitutional jurisdiction over the employment relationship between the responding party and the persons in the bargaining unit. That is an issue which was raised by the applicant in its application. It is unusual for an applicant to file an application before this Board and at the same time dispute the Board’s jurisdiction to grant the relief nominally sought. In areas other than constitutional law the Board might well require an applicant to elect immediately which position it was taking. However, given the uncertainty of some constitutional law questions, and this case is one such example, the Board has not done so.
6The Board has not refused to deal with the issue. The Board has postponed dealing with it until September 24, 2001. The only other option for the Board is to deal with it immediately. Nothing in counsel’s submissions has caused me to rethink the analysis contained in the May 23 decision. For the reasons set out therein, it is preferable, in my view, to postpone dealing with the issue until September 24, 2001.
7The decision of May 23, 2001 is affirmed.
“David A. McKee”
for the Board