[1981] OLRB Rep. February 190
2175-80-R Laura F. Cochlin, Applicant, v. United Cement Lime & Gypsum Workers International Union, Respondent, v. Lesmith Limited, Intervener.
BEFORE: D. E. Franks, Vice-Chairman, and Board Members H. Kobryn and J. Wilson.
APPEARANCES: Laura F. Cochlin for the applicant; E. K. Mattocks for the respondent; Harvey Spiegel, Q. C., for the intervener.
DECISION OF THE BOARD; February 9, 1981
This is an application for termination of bargaining rights made under section 49 of The Labour Relations Act. The respondent trade union was certified to represent certain of the employees of the intervener employer on October 30, 1979. Subsequently, negotiations commenced and on June 6, 1980 the Minister issued a notice to the parties that he did not considered it advisable to appoint a conciliation Board in this matter. A lawful strike of the employees commenced on August 26, 1980. It appears that the strike eventually collapsed with a substantial number of employees returning to work. The present application for termination of bargaining rights was made on January 13, 1981. At the hearing in this matter the Board was informed that the respondent and the intervene employer had signed a collective agreement dated January 26, 1981. It is clear, however, that at the time the present application was filed with the Board, no collective agreement was in effect between the respondent and the intervener.
It would thus appear that the present application is made pursuant to subsection 1 of section 49 which reads as follows:
"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determined in the certificate may, subject to section 53, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit."
That subsection is subject to the timeliness provisions of section 53 of the Act and in particular subsection 3 of section 53 which reads as follows:
"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such employees, no application for certification of a bargaining agent of, or for a declaration that the trade union no longer represents, the employees in the bargaining unit determined in the certificate shall be made,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."
In view of the history of collective bargaining between the parties, it would appear that under clause (a) of section 53(3) the earliest date for a timely application would be February 26, 1981 and under clause (b) of subsection 3, the earliest date for a timely application would be January 6, 1981. It would appear then that with no collective agreement in existence, a timely application for termination for bargaining rights could be made after January 6, 1981. The Board, therefore, finds that the application for termination is timely under section 49(1) and section 53(3)(b).
The fact that a collective agreement was made subsequent to the filing of this application, indeed, subsequent to the terminal date of this application is not a relevant consideration. In this regard the decision of the Board in Canadian Transportation Workers Union No. 197 National Council of Canadian Labour, [1967] OLRB Rep. May 154 was cited to the Board. That case dealt with an application under the present section 51(1) which gives the Board the discretion upon a termination application to terminate bargaining rights where a trade union that had been certified does not proceed with the collective bargaining process. The present application, however, is made under section 49(1) and the employees are entitled to look at the situation at the time when the application is made. Indeed, the main thrust of section 53 is to protect the collective bargaining process. The protection of the bargaining process afforded by section 53 having run out, the respondent trade union cannot, subsequent to an application, defeat that application by signing a collective agreement with the employer.
At the hearing in this matter, the Board heard evidence concerning the origination and preparation and circulation of the document which accompanied the application for termination. We are of the view that it represents the true wishes of the employees and, accordingly, the Board finds that not less than forty-five per cent of the employees of the intervener in the bargaining unit, at the time the application was made had voluntarily signified in writing that they no longer wished to be represented by the respondent on January 22, 1981, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent under section 49(1) of the Act.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent at Oakville, Ontario, save and except supervisors, those above the rank of supervisor, office and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
A representation vote will be taken of the employees of the intervener in the bargaining unit. Those employees eligible to vote will be all employees of the intervener on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken.
Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with Lesmith Limited.
The matter is referred to the Registrar.