Communications, Energy and Paperworkers Union of Canada, Local 87-M Southern Ontario Newspaper Guild v. Kitchener-Waterloo Record (A Division of Torstar Daily Newspaper Group Inc.)
0655-01-R Communications, Energy and Paperworkers Union of Canada, Local 87-M Southern Ontario Newspaper Guild, Applicant v. Kitchener-Waterloo Record (A Division of Torstar Daily Newspaper Group Inc.), Responding Party.
BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
DECISION OF BOARD MEMBER PATRICK KELLY, AND BOARD MEMBER J. A. RONSON; June 4, 2001
1This is a request for reconsideration of our decision dated May 31, 2001 in which we ordered the representation vote to be held on June 7, 2001, rather than June 4, 2001.
2Counsel for the applicant points out that he made submissions on May 31, 2001 opposing the responding party’s request to hold the representation vote on June 7, 2001. Those submissions had not been brought to our attention at the time that our decision was issued. We are of the view that, in fairness, those submissions should be considered now, together with the submissions contained in, and in response to, the reconsideration request.
3Counsel for the applicant contends the Board’s discretion under section 8(5) of the Labour Relations Act, 1995, S.O. 1995, c.1 (“the Act”) as amended to order a vote beyond the five-day period described in that section should be exercised sparingly and only in exceptional circumstances, and then only where there is cogent evidence supportive of an exception. He argues that the circumstances in this case are not exceptional, nor is there cogent evidence supporting an exception. The responding party, he submits, did not make out with any degree of precision that attendance at the workplace by employees affected by the application would be dramatically different whether the vote was held on June 4, 2001 or June 7, 2001. In fact, counsel contends, the employee list submitted by the responding party makes clear that a significant number of employees in the bargaining unit would not be scheduled to work regardless of whether the vote was held on a Monday or a Thursday.
4We are of the view that it is far from clear that the employee list submitted by the responding party can be read in such a way as to predict the numbers of employees who will be present in the workplace on any given day. In any event, in responding to this request for reconsideration, the responding party indicated that 57 employees will be scheduled to work on Thursday, June 7, 2001, while only 12 are scheduled to work on Monday, June 4, 2001.
5The Board makes no determination as to the applicant’s submissions concerning the test that ought to be utilized in the exercise of discretion under section 8(5) of the Act, and whether the assertions of the responding party regarding the timing of the vote met that test, thereby justifying the delay of the vote. Even if the applicant’s submissions are correct, it would be, at this point, inappropriate and chaotic to order that the vote be held on June 4, 2001, today’s date. To order a change in the vote to any date earlier than June 7, 2001 would likely cause confusion among employees who, as of May 31, 2001 anticipated a vote on June 7, 2001.
6For these reasons, we decline to amend our decision of May 31, 2001.
“Patrick Kelly”
for the majority
DECISION OF BOARD MEMBER R. R. MONTAGUE; June 4, 2001
My position remains the same as stated in my dissent of May 31, 2001, Board File No. 0655-01-R. which ordered the vote. The dissent reads as follows:
“I dissent with respect to the date of the representation vote. I would have ordered the vote to be held on June 4, 2001, within the five day period contemplated by section 8(5)”.
“R. R. Montague”