[1983] OLRB Rep. June 863
0324-83-R Pamela Nadine Stewart, Mary John Gow, Shirley Emma Campbell, Donna Jean Whitehead, Phyllis Isabel McNeil and Margaret Edith Lyle, v. Applicants, v. The Ontario Nurses' Association, Respondent, v. The Bobier Convalescent Home, Intervener
BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members John W. Murray and W. F. Rutherford.
DECISION OF THE BOARD; June 10, 1983
1. This is an application which was filed on May 6, 1983, pursuant to section 57 of the Labour Relations Act for a declaration that the respondent no longer represents the employees in the bargaining unit for which it is the bargaining agent.
2. The respondent filed a reply to the application in which it submitted that the Board lacked jurisdiction to hear the matter because the application was untimely pursuant to section 12 of the Hospital Labour Disputes Arbitration Act and section 57 of the Labour Relations Act.
3. The respondent was certified as the bargaining agent for certain employees of the applicants' employer on June 1, 1981. It is not disputed that the employer of the applicants is a hospital within the meaning of the Hospital Labour Disputes Arbitration Act, and it is a matter of record that no collective agreement has been entered into by the employer of the applicants with the trade union. The respondent applied for conciliation under the Labour Relations Act on March 11, 1982, a conciliation meeting was held on April 30, 1982, and the Minister of Labour issued a notice on May 14, 1982 that the conciliation officer was unable to effect a collective agreement pursuant to section 3 of the Hospital Labour Disputes Arbitration Act. Pursuant to the provisions of that Act, the matter has now been referred to arbitration which is scheduled to occur on June 14, 1983.
4. It is clear from the progress of bargaining between the respondent and the applicants' employer that following certification, no collective agreement, as of the time the application under section 57 was made by the applicants, had been entered into, and that prior to the filing of that application, a conciliation officer had been appointed.
5. The timeliness of an application for a declaration terminating bargaining rights by these applicants is dependent upon sections 57 and 61 of the Labour Relations Act, and in this case, on section 12 of the Hospital Labour Disputes Arbitration Act. An application by employees of a hospital for a declaration terminating a trade union's bargaining rights after certification and after a conciliation officer has been appointed can only be made during the "open period" of a collective agreement. Under the Hospital Labour Disputes Arbitration Act since there can be no strikes or lockouts and collective bargaining disputes must be referred to arbitration, a collective agreement will eventually be created, if not by the parties themselves, then by the arbitrator under the Act.
6. The timeliness of applications of this type has been dealt with by the Board in Birchcliff Nursing Home, [19751 OLRB Rep. April 384, where the Board at page 386 wrote:
'The entitlement to apply under section 53(1) [now 61(1)1 of the Labour Relations Act for a declaration terminating, bargaining rights following certification, and before a collective agreement is concluded, is quite different. Under section 53(1) such an application may be made following the exhaustion of conciliation procedures -more precisely, after conciliation has been concluded and the time limits stipulated under sections 53(1) (a), (b) or (c), as the case may be, have elapsed. However, in the case of a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act, where the right to strike (or lock out) has been replaced by compulsory arbitration, the appointment of a conciliation officer operates to bar an application for termination until the conditions stipulated in section 49(2) [now 57(2)1 of the Labour Relations Act have been met: i.e., until a collective agreement has been concluded, and then only within the open period (as set out in sections 49(2) (a), (b) or (c), as the case may be) of that collective agreement."
See also Nel-Gor Castle Nursing Home, 119791 OLRB Rep. Oct. 1013 at 1015.
7. Under the provisions of Rule 71 of the Board's Rules of Procedure, the Board is permitted to dismiss an application without a hearing, where, in the opinion of the Board, the application does not make out a prima facie case for the remedy requested. In this case, having regard to the facts as outlined above, and to the relevant provisions of the Labour Relations Act and the Hospital Labour Disputes Arbitration Act, this application is clearly untimely. Accordingly, pursuant to our authority under Rule 71 we hereby dismiss this application without a hearing. Therefore, the hearing scheduled for June 14, 1983, is cancelled.