Ontario Labour Relations Board
[1981] OLRB Rep. August 1156
0402-81-R Mohawk Construction Limited, Applicant, v. International Union of Operating Engineers, Local 793, Respondent.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members W. H. Wightman and M. J. Fenwick.
APPEARANCES: Art Watson for the applicant; E. A. Ford for the respondent.
DECISION OF THE BOARD; August 25, 1981
- The name: "The international Union of Operating Engineers Local 793" appearing in the style of cause of this application as the name of the respondent is amended to read:
"International Union of Operating Engineers, Local 793".
The applicant Mohawk Construction Limited ("Mohawk") has applied to the Ontario Labour Relations Board under section 51 of The Labour Relations Act for a declaration that the International Union of Operating Engineers, Local 793 ("the union") no longer represents the employees in the bargaining unit referred to below for which the union is the bargaining agent.
This is an application coming under subsection 2 of section 51 of the Act, since the union has given notice pursuant to section 13 of the Act. Subsection 2 provides as follows:
Where a trade union that has given notice under section 13 or section 45 or that has received notice under section 45 fails to commence to bargain within sixty days from the giving of the notice or, after having commenced to bargain but before the Minister has appointed a conciliation officer or mediator, allows a period of sixty days to elapse during which it has not sought to bargain, the Board may, upon the application of the employer or of any of the employees in the bargaining unit and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit.
It is undisputed that the parties met on February 4, 1981 and commenced bargaining for a collective agreement. After that a period of more than 60 days elapsed during which the union did not seek to bargain. Since no conciliation officer had been appointed in that interval, it becomes a matter of whether the Board will exercise its discretion under section 5 1(2) to declare that the trade union no longer represents the employees in the bargaining unit.
The facts in this case are few, relatively straightforward and not in dispute. The bargaining unit affected by this application is described as follows in a certificate issued to the union under section 131a(2) of the Act:
All employees of Mohawk Construction Limited in Metropolitan Toronto, the Regional Municipality of York and the County of Peel, the Township of Esquesing and the Towns of Oakville and Milton in the County of Halton and the Township of Pickering in the County of Ontario, excluding the industrial, commercial and institutional sector, engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing and maintaining of same, save and except non-working foremen and persons above the rank of non-working foreman.
At the meeting on February 4th, 1981, the union sought to obtain the employer's agreement to be bound by a collective agreement which the union has with excavating contractors in the construction industry. The employer contended that it was primarily a road building contractor and that it wished to bargain on the basis of the collective agreement which the union has with road builders. That is as far as the negotiations got that day and nothing further developed for some twelve weeks until on April 30th the union applied to the Minister of Labour for the appointment of a conciliation officer in the dispute. The employer registered his written objection to the request by letter dated May 6, 1981, a copy of which the employer sent to the union. Although the evidence before the Board does not pinpoint either the fact or the date when a conciliation officer was appointed, both parties believe that an officer was appointed on May 7 and they met with the officer on May 19th. The parties met with the officer for approximately an hour and did not alter the positions which they had taken on February 4th. The officer advised the parties that, in view of their positions, he would be recommending to the Minister that no conciliation board be appointed. Subsequently, by letter dated May 25th, the parties were advised that the Minister would not appoint a conciliation board in their dispute. This application was made May 21st, 1981.
The union was unable to explain to the Board why it allowed twelve weeks to elapse without seeking to bargain with the employer except to say that the delay might have been caused by oversight resulting from internal administrative problems which it claims it was having during that period.
The nature of the Board's discretion under section 51 of the Act was described in the following terms in its decision in Dominion Stores Limited, 56 CLLC 9118,047:
The purpose of section 43 [now section 51] of the Act is to protect the employees and in a proper case, the employer against a union which stakes out a claim to represent certain employees and then takes no steps within a reasonable time to forward the interests of those employees. However, the section is to be used as a shield, not as a sword. Section 43 [now section 51] should not be used to penalize a union which has failed to give notice under section 10 [now section 13] of the Act, but rather to afford an opportunity for an interested party to bring that fact to the attention of the Board so that the Board may call upon the union to give an explanation for the delay in commencing or continuing negotiations as the case may be. If no satisfactory explanation is forthcoming, the Board will no doubt in many cases terminate the bargaining rights of the union instantaneously.
The Board looks at the conduct of the parties during the whole period from the giving of notice to bargain to the filing of the application under section 51 in order to decide how to exercise its discretion. See The John Oliver Lumber Company of Toronto Limited, [1963] OLRB Rep. Aug. 280. In the case at hand, there is nothing about the parties' conduct prior to the February 4th meeting which is of assistance to the Board. While the union's explanation for not seeking to bargain for a period of twelve weeks is hardly satisfactory, there can be no doubt that its request for conciliation services was a serious attempt to resume bargaining.
The fact that the union has, without satisfactory explanation, allowed 12 weeks to elapse during which it made no attempt to bargain certainly leaves something to be desired. This lack of diligence in pursuing its bargaining rights, however, has been cured by its renewed interest in them as evidenced by the request for conciliation services which it made on April 30th. Since that step to resume the exercise of its bargaining rights was taken prior to the filing of this application, no purpose would be served now by terminating those bargaining rights. See the Board's decision in the Village of Point Edward Public Works Department, [1966] OLRB Rep. Nov. 615. Therefore the Board finds that these are not circumstances in which it should exercise its discretion to terminate the union's bargaining rights.
This application is dismissed.