1994-01-R Elementary Teachers’ Federation of Ontario, Applicant v. Lakehead District School Board, Responding Party v. Ontario Secondary School Teachers’ Federation, Intervenor.
2033-01-R Ontario Secondary School Teachers’ Federation, Applicant v. Lakehead District School Board, Responding Party v. Elementary Teachers’ Federation of Ontario, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
DECISION OF THE BOARD; October 26, 2001
Board File No. 1994-01-R deals with an application for certification filed by Elementary Teachers Federation of Ontario (“ETFO”) in respect of early childhood educators employed by Lakehead District School Board (“Lakehead”). That application (“the ETFO application”) was filed with the Board on October 18, 2001. On October 23, 2001, the Board directed the taking of a representation vote to be held on October 25, 2001. The Board further directed that voters were to be asked whether or not they wished to be represented by ETFO in their employment relations with Lakehead.
Later in the day of October 23, 2001, following the release of the October 23, 2001 decision of the Board, Ontario Secondary Schools Teachers’ Federation (“OSSTF”) filed with the Board an intervention in the ETFO application, and, at the same time, filed with the Board its own application for certification (Board File No. 2033-01-R) in respect of the same employees and employer as in the ETFO application. (We note that all of the membership documents filed in support of the OSSTF application are dated October 22, 2001, four days after the filing of the ETFO application. That fact suggests that this is not a situation of competing trade unions vying to prevail by being the first to file an application). In addition, on October 24, 2001, OSSTF filed with the Board a request for reconsideration of its decision of October 23, 2001.
This decision deals with OSSTF’s application for certification (“the OSSTF application”) and its request for reconsideration. In both, OSSTF requested that the ETFO application and the OSSTF application be treated by the Board as having been received on the same day pursuant to section 111(3)(a) of the Labour Relations Act, 1995, as amended (“the Act”), and that a single representation vote be conducted in which employees in the bargaining unit be given a choice as to whether they wished to be represented by ETFO or by OSSTF.
Dealing first with the request for reconsideration, OSSTF asserts that presumably the Board was unaware of OSSTF’s intervention in the ETFO application and the request contained therein that the two applications for certification be treated as having been filed on the same date. In fact, at any of the times on October 23, 2001 during which the Board considered, decided and issued its October 23, 2001 decision, no intervention and no application for certification by OSSTF in respect of the Lakehead employees had been filed with the Board. The intervention in the ETFO application and the OSSTF application were filed nearly two hours after the Board issued its decision of October 23, 2001.
The mere fact that the OSSTF application was filed three days after the ETFO application is not, in our view, a compelling reason to reconsider our decision of October 23, 2001, particularly in light of the fact that at the time we made and issued that decision, we had neither the intervention by OSSTF nor the OSSTF application before us.
We decline to reconsider our decision of October 23, 2001.
We turn now to a consideration of the OSSTF application. As noted, that application was filed after, but before any final determination in, the ETFO application. In those circumstances, section 111(3) of the Act applies. Section 111(3) provides as follows:
(3) Despite sections 7 and 63, where an application has been made for certification of a trade union as bargaining agent for employees in a bargaining unit or for a declaration that the trade union no longer represents the employees in a bargaining unit and a final decision of the application has not been issued by the Board at the time a subsequent application for the certification or for the declaration is made with respect to any of the employees affected by the original application, the Board may,
(a) treat the subsequent application as having been made on the date of the making of the original application;
(b) postpone consideration of the subsequent application until a final decision has been issued on the original application and thereafter consider the subsequent application but subject to any final decision issued by the Board on the original application; or
(c) refuse to entertain the subsequent application.
The vote in the ETFO application was scheduled to, and did, take place on October 25, 2001. In our view, therefore, there is no compelling reason to treat the OSSTF application and the ETFO application as having been received by the Board on the same day, as contemplated by paragraph (a) of section 111(3). Nor is there any obvious reason to refuse to entertain the OSSTF application as contemplated by paragraph (c) of the same section (neither ETFO nor Lakehead requested that relief).
Accordingly, pursuant to paragraph (b) of section 111(3) of the Act, we find this an appropriate case to postpone consideration of the OSSTF application until a final decision has been issued on the ETFO application, and thereafter to consider the OSSTF application but subject to any final decision issued by the Board on the ETFO application.
The responding party is directed to post copies of this decision adjacent to each of the posted copies of the "Notice to Employees of Application for Certification" in both Board files. These copies must remain posted for 30 days.
“Patrick Kelly”
for the Board