[1984] OLRB Rep. March 448
0247-82-R Operative Plasterers and Cement Masons International Association of the United States and Canada, Local Union No. 124, Ottawa/Hull on behalf of all affiliated bargaining agents of the employee bargaining agency, namely the Operative Plasterers and Cement Masons International Association of the United States and Canada; or Provincial Conference of Ontario of the Operative Plasterers and Cement Masons International Association of the United States and Canada, Applicant, v. Duron Ottawa Ltd., Respondent, v. Labourers' International Union of North America, Local 527, Intervener #1, v. Labourers' International Union of North America and Labourers' International Union of North America, Ontario Provincial District Council, Intervener #2
BEFORE: D. E. Franks, Vice-Chairman, and Board Members W. H. Wightman and H. Kobryn.
DECISION OF THE BOARD; March 7, 1984
- By a decision dated November 17, 1983 the present application was dismissed following the taking of a representation vote. In that decision, the Board stated:
"The Board will not entertain an application for certification by the applicant with respect to any of the employees of the respondent in the bargaining unit within the period of six months from the date hereof."
The effect of that bar would be to prevent the applicant trade union in the present case from applying for certification until May 18, 1984. Counsel for the applicant has subsequently written to the Board requesting that the bar imposed by the Board in the above paragraph be reconsidered by the Board and removed.
- The reason for the request by the applicant is as a consequence of section 146(3) which reads:
"Every provincial agreement shall provide for the expiry of the agreement on the 30th day of April calculated biennially from the 30th day of April, 1978."
Accordingly, the only time when a timely application for certification can be made with respect to the collective agreement between the respondent and the interveners is in the two months preceding April 30th, 1984. The effect of the bar then imposed by the Board in its previous decision would thus be to prevent the applicant from applying for certification during the "open" period in 1984.
The present application was made on April 30th of 1982. The result of that application was a series of long protracting proceedings which, as noted above, ended with the Board dismissing the application in November of 1983.
Counsel for the interveners resists the request for reconsideration by the applicant, and refers to the Board's normal policy of imposing a bar in order to allow the employees a "cooling off" period and that repetitious applications are not in the interest of sound labour relations. We are of the view, however, that neither of these policy reasons are applicable in the present case. We note that this open period is two years later than the last open period. In such circumstances, that is much greater than the normal six month cooling off period nor can any application in the up-coming open period be viewed as repetitious. The mere fact that the proceedings appear to be continuous does not make such an application in itself repetitious.
Indeed, we are constrained to note that section 5 of the Labour Relations Act which deals with the timeliness of applications for certification preserves the right of employees to be involved in applications for certification, and indeed, other sections of the Act such as section 52(3) protect such open periods. In dealing with collective agreements relating to the industrial, commercial and institutional sector of the construction industry the open periods are prescribed by implication from section 146(3), and it is our view that the Board's normal policy of a six month bar ought not to prevent that open period from commencing.
For the foregoing reasons, therefore, the Board revokes the bar set out in paragraph
4 of its decision of November 17, 1983.