[1980] OLRB Rep. July 1036
2222-79-R Homida Ali, Applicant, v. Local 2078 of the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (U.A.W.), Respondent, v. Ontario Hospital Association (Blue Cross), Intervener.
BEFORE: Ian C. A. Springate, Vice-Chairman, and Board Members G. Donnelly and M. J. Fenwick.
APPEARANCES: Fred .1. Matthews, James W. Weppler and Homida Ali for the Applicant; Lennox A. MacLean, Q.C., Carl Anderson, Joe Maloney and Clare Meneghini for the respondent; Douglas K. Gray and George Ubels for the intervener.
DECISION OF THE BOARD; July 16, 1980
The name "United Auto Workers Local 2078" appearing in the style of cause of this application as the name of the respondent is amended to read "Local 2078 of the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (U.A.W.)".
This is an application under section 49 of The Labour Relations Act for a declaration terminating the respondent's bargaining rights. The application was dismissed orally at the hearing as well as in a brief written decision released immediately thereafter. What follows are the reasons for the decision to dismiss the application.
On March 14, 1979 the Board certified the respondent trade union on an interim basis under section 6(la) of the Act to represent certain employees of the intervener. A conciliation officer was subsequently appointed to assist the parties in their attempts to negotiate a first collective agreement. After the officer's endeavors proved unsuccessful, the Minister on June 15, 1979 issued a "no board" report indicating that he would not be appointing a conciliation board. On or about September 24, 1979, the employees in the bargaining unit commenced a lawful strike. The strike was still continuing when this application was filed on February 22, 1980.
The relevant statutory provisions of the Act are set out below:
"49.—(l) If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may, subject to section 53, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.
53.—(l) Subject to subsection 3, where a trade union has not made a collective agreement within one year after its certification and the Minister has appointed a conciliation officer or a mediator under this Act, no application for certification of a bargaining agent of, or for a declaration that a trade union no longer represents, the employees in the bargaining unit determined in the certificate shall be made until,
(a) thirty days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator; or
(b) thirty days have elapsed after the Minister has released to the parties a notice that he does not consider it advisable to appoint a conciliation board; or
(c) six months have elapsed after the Minister has released to the parties a notice of a report of the conciliation officer that the differences between the parties concerning the terms of a collective agreement have been settled,
as the case may be.
(3) Where a trade union has given notice under section 13 and the employees in the bargaining unit on whose behalf the trade union was certified as bargaining agent thereafter engage in a lawful strike or the employer lawfully locks out such employees, no application for certification of a bargaining agent of, or for a declaration that the trade union no longer represents, the employees in the bargaining unit determined in the certificate shall be made,
(a) until six months have elapsed after the strike or lock-out commenced; or
(b) until seven months have elapsed after the Minister has released to the parties the report of the conciliation board or mediator or a notice that the Minister does not consider it advisable to appoint a conciliation board,
whichever occurs first."
Counsel for the applicant contended that since the employees had engaged in a lawful strike, the only relevant time limits were those set out in section 53(3) and accordingly the one year limitation from the time of certification referred to in section 49(1) had no application. On the basis of this contention, counsel submitted that the application was timely in that it had been filed after seven months had elapsed from the time the Minister had indicated that he would not be appointing a conciliation board.
Subject to section 53, section 49(1) of the Act has the effect of ensuring that a trade union will be given a full year from the date of its certification in which to seek to negotiate a first collective agreement free from any timely attempts to terminate its bargaining rights. Section 53(1) provides an exception to this general time period by ensuring that this one year period will, if necessary, be extended so that a union's immunity from a timely termination application will be continued during the conciliation process and for a further period of thirty days thereafter. It is clear on its face that section 53(1) can only serve to extend the one year period, and cannot reduce the period to less than a year. Section 53(3), which only comes into play where employees engage in a lawful strike, provides yet another exception to the general time limit set out in section 49(1). Although section 53(3) does not on its face state that it can only serve to expand, and not contract, the one year period of protection accorded to a newly certified union, having regard to the clear intent manifested by section 49(1) and section 53(1) of providing for such a one year period, we are satisfied that section 53(3) should not be interpreted so as to allow this time span to be shortened. We would note that this conclusion appears to be consistent with the reasoning of the Board in the Canron Limited case, [1977] OLRB Rep. June 336.
We are satisfied that section 53(3) cannot have the effect of reducing the one year period provided for in section 49(1) during which a newly certified union is protected from a timely termination application. The instant application was filed prior to the passage of a year from the date that the respondent trade union was certified, and, accordingly, the application was dismissed as being untimely.