Ontario Labour Relations Board
Parties: Clarence Hynes, Applicant, v. International Association of Machinists and Aerospace Workers, Local 788, Respondent.
Before: George W. Adams, Chairman, and Board Members J. D. Bell and C. Ballentine.
Decision of the Board: July 22, 1980
Decision
1This is an application for a declaration terminating the bargaining rights of the respondent trade union brought under section 49 of The Labour Relations Act.
2This application was filed with the Board on July 8th, 1980. Paragraph S of the application states in part:
"Our union contract expires September 30th, 1980."
3The collective agreement in effect between the employer of the applicant and the respondent trade union has a term of operation which commenced September 30th, 1978, and which expires on September 30th, 1980. Thus the collective agreement has a term of two years.
4Section 49 of the Act, the section under which the application was made provides:
"(2) Any of the employees in the bargaining unit defined in a collective agreement may. . . apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;"
5In this case the applicant applied to the Board for a declaration under Section 49 on July 8th, 1980, which is prior to "the commencement of the last two months" of the operation of the collective agreement in effect between the applicant's employer and the respondent. Thus, the application is clearly untimely.
6Section 46 of the Board's Rules of Procedure, Regulations 551, R.R.O. 1970 provides:
"Where an application or complaint does not, in the opinion of the Board, make out a prima facie case for the remedy requested, the Board may dismiss the application or complaint without a hearing and it shall, in its decision, state the reason for the dismissal".
Rule 46 permits the Board to dismiss a complaint or application without a hearing where the complaint or application does not, on its face, make out a case for the remedy requested. (See Ford Motor Company, [1972] OLRB Rep. Sept. 828; Concrete Construction Supplies, [1979] OLRB Rep. Dec. 1152).
7In this case the application for a declaration terminating the bargaining rights of the respondent is untimely. The Board cannot grant the applicant the remedy he seeks at this time by virtue of Section 49(2)(a) of the Act. Thus the application must be dismissed. However, this dismissal does not preclude the applicant from applying to the Board under Section 49 in a timely manner.