Stephen Rath v. Teamsters Union Local 141

[1984] OLRB Rep. May 728

1626-83-R Stephen Rath, Applicant, v. Teamsters Union Local 141, Respondent, v. Inter City Papers Limited, Intervener

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. W. Murray and S. Cooke.

APPEARANCES: Stephen Rath and Win. M. Richards for the applicant; Lewis Gottheil, Everett Winegarden, Brian Nickerson and Mark Hancox for the respondent; Brenda Bowlby, Andrew Shields and William Thompson for the intervener.

DECISION OF N. B. SATTERFIELD, VICE-CHAIRMAN AND BOARD MEMBER J. W. MURRAY; May 8, 1984

1. This is an application made pursuant to section 57 of the Labour Relations Act for a declaration terminating the bargaining rights of Teamsters Union Local 141 ("Local 141"). The relevant parts of section 57 for purposes of this application are subsection 2 clause (a) and subsection 3 which provide as follows:

57.-(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,

(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;

(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.

2. The applicant, Stephen Rath, had filed a similar application prior to this one which had been dismissed by the Board as untimely. In this respect, see the Board's decision which issued October 12th, 1983 in Board File No. 1242-83-R. No issue of timeliness was raised with respect to the instant application prior to the commencement of the hearing into it. During the hearing, however, a collective agreement between Local 141 and Inter City Papers Limited, London Division was proffered to the Board. The agreement, on its face, was for a term of less than one year. The application of section 52(1) of the Act, which stipulates that a collective agreement which provides for a term of operation of less than one year be deemed to provide for its operation for a term of one year from the date that it commenced to operate, would cause the application to be untimely. The Board, for that reason, heard the evidence and representations of the parties with respect to that issue. The Board found that, prior to the signing of the collective agreement, the parties had entered into a memorandum of agreement which provided for a term of operation of the collective agreement different from the one appearing on the face of the collective agreement. The Board further found that the memorandum of agreement constituted a collective agreement within the meaning of section 1 (1)(e) of the Act. While section 52(5) of the Act allows the parties to a collective agreement to revise its terms at any time by mutual consent, the section prohibits revisions to the agreement's term of operation. Therefore, to the extent that the document proffered to the Board as a collective agreement differs from the memorandum of agreement by the mutual consent of the parties, it cannot differ with respect to its term of operation. The Board ruled, therefore, that the term of operation of the collective agreement relevant to this application was the term set out in the Memorandum of Agreement between the employer and Local 141. Accordingly, the Board found the application had been filed during the last two months of operation of the agreement and was timely.

[Review of evidence relating to petition omitted]

14. In all of the foregoing circumstances the Board is prepared to accept the petition filed in support of this application as voluntary signification by the employees who signed it that they no longer wish to be represented by Teamsters Union Local 141.

15. The Board is satisfied on the basis of all the evidence before it that not less than forty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on October 31, 1983, the terminal date section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

16. The Board directs that a representation vote be taken of the employees of Inter City Papers Limited. Those eligible to vote are all employees of Inter City Papers Limited at 1505 Sise Rd. in the City of London and at any other address within the City of London to which this operation may be moved, save and except foreman, persons above the rank of foreman, office and sales staff and students employed during the school vacation period 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.

17. Voters will be asked to indicate whether they wish to be represented by the respondent in their employment relations with the intervener.

18. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER S. COOKE;

I dissent.