Ontario Labour Relations Board
[1981] OLRB Rep. November 1691
0457-81-M Kevin James McGrath, Applicant, v. United Steelworkers of America, Local 8533, Respondent, v. Umex Corp. Ltd., Respondent
BEFORE: George W. Adams, Chairman, and Board Members O. Hodges and J. D. Bell.
DECISION OF THE BOARD; November 5, 1981
Decision
1. By application dated May 12, 1981, the applicant sought exemption under section 47 of the Labour Relations Act, from the union security provisions of a collective agreement entered into by his union and his employer, Umex Inc.
2. The respondent union filed its reply on June 17, 1981, reserving its right to file a supplementary reply after further review. The Registrar of the Board, in accordance with usual practice, scheduled the matter for hearing on July 23. 1981.
3. Subsequently, by letter dated July 14, 1981, the union filed a supplementary reply, in which it took the position, inter alia, that the application was untimely and that therefore it did not make a prima friie case. It was submitted that the application should be dismissed without a hearing pursuant to section 46(1) of the Board's Rules of Procedure.
4. Unfortunately, the Registrar was unable to contact the applicant in order to put him on notice of the union's position and to provide him with an opportunity to respond and his employer was unable to indicate his whereabouts, other than that he was on vacation.
5. On July 23, 1981, the applicant appeared at the Board's offices unaware of the union's position and requested that he be permitted time to submit written representations, which he wished the Board to take into account in deciding whether to invoke Rule 46(1). His request was granted.
6. The applicant filed his written representations by letter dated October 10, 1981 and the union responded by letter dated October 27, 1981.
7. It is common ground that the union security clause from which the applicant seeks exemption is contained in a collective agreement entered into by the respondent union and the applicant's employer, Umex Inc., on March IS, 1981. The clause requires the employer to deduct from the first pay each month of every employee in the bargaining unit, an amount equivalent to regular union dues and to remit such amounts to the union. The clause had been first negotiated by the parties in a collective agreement entered into on January 7, 1977. It had been carried over upon the renewal of the collective agreement on March 15, 1979.
8. Section 47 of the Labour Relations Act provides as follows:
"47-(l) Where the Board is satisfied that an employee because of his religious conviction or belief,
(a) objects to joining a trade union; or
(b) objects to the paying of dues or other assessments to a trade union,
the Board may order that the provisions of a collective agreement of the type mentioned in clause 46(1 )(a) do not apply to such employee and that the employee is not required to join the trade union, to be or continue to be a member of the trade union, or to pay any dues, fees or assessments to the trade union, provided that amounts equal to any initiation fees, dues or other assessments are paid by the employee to or are remitted by the employer to a charitable organization mutually agreed upon by the employee and the trade union, but if the employee and the trade union fail to so agree then to such charitable organization registered as a charitable organization in Canada under Part I of the Income Tax Act (Canada) as may be designated by the Board.
(2) Subsection (1) applies to employees in the employ of an employer at the time a collective agreement containing a provision of the kind mentioned in subsection (I) is first entered into with that employer and only during the life of such collective agreement, and does not apply to employees whose employment commences after the entering into the collective agreement."
(emphasis added)
9. The emphasized words in section 47(2) make it clear that the exemption is available only to an employee who was in the employ of the employer at the time the collective agreement containing the union security clause was entered into.
10. The applicant commenced his employment with the employer on July II, 1979. That is, subsequent to the date the collective agreement was first entered into (January 7, 1977), and even subsequent to the entering into of the renewed collective agreement (March 15, 1979).
11. Therefore, it is clear on the face of the application that it is untimely. See: Shaw Bakery Company' Limited, [1981] OLRB Rep. May 579.
12. Section 46 of the Board's Rules of Procedure provides as follows:
"46-(l) 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 stated the reason for the dismissal.
(2) The applicant or complainant may within ten days after he is served with the decision of the Board under subsection I request the Board to review its decision.
(3) A request for review under this section shall contain a concise statement of the facts and reasons upon which the applicant relies.
(4) Upon a request for review being filed, the Board may,
(a) direct that the application or complaint be re-opened and proceeded with by the Board in accordance with the provisions applicable thereto;
(b) direct the registrar to serve the applicant and any other person who in the opinion of the Board may be affected by the application or complaint with a notice of hearing to show cause why the application or complaint should be re-opened; or
(c) confirm its decision dismissing the application or complaint."
It is under section 46(1) of the Rules that the union requests that this application be dismissed without a hearing.
13. We turn now to the written submissions of the applicant filed in response to the union's request for dismissal without a hearing. The applicant does not deny that the application is untimely on the clear wording of section 47(2) of the Act. However, he has made two submissions relating to the provision.
14. First, he contended that to restrict the exemption only to employees who were already in the employ of the employer at the time the collective agreement containing the union security clause was first entered into, is "unfair and discriminatory". Unfortunately, the fact remains that the applicant is faced with a legislative provision, the meaning of which is clear and unequivocal. The applicant's — (or for that matter the Board's) opinion as to the desirability or merits of such a provision obviously cannot influence its clear meaning.
15. Secondly, the applicant relied on section 4 and 5 of The Ontario Human Rights Code, R.S.O. 1980, c. 340. Section 4 reads as follows:
"4(l) No person shall,
(g) discriminate against any employee with regard to any term or condition of employment, because of race, creed, colour, age, sex, marital status, nationality, ancestry, or place of origin of such person or employee.~~
Section 5 prohibits trade unions against exclusion, expulsion or suspension of any person from union membership and against discrimination against any person or member because of any of the prohibited grounds of discrimination as in section 4 above.
16. If the applicant's contention is that section 47(2) of the Labour Relations Act is either void or unenforceable because it is in conflict with The Ontario Human Rights Code, we see no basis for this contention. The provisions of the Code relied upon prohibit discrimination against a person because of, inter alia, his "creed". We fail to see how section 47(2) conflicts with this prohibition. In any event, even if this was the case, the applicant's contention still must fail since the Code does not have primacy over the Labour Relations Act, and cannot affect its interpretation or enforcement.
17. For the foregoing reasons, the Board is of the opinion that this application is clearly untimely. The application fails to make out a prima facie case and, pursuant to rule 46(1) of the Board's Rules of Procedure, this application is hereby dismissed.