Laurie Fisher & Evalina Van Geutselaar v. London and District Service Workers' Union, Local 220
[1985] OLRB Rep. October 1490
1297-85-R Laurie Fisher & Evalina Van Geutselaar, Applicants, v. London and District Service Workers' Union, Local 220, Respondent
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members W H. Wightman and S. O 'Flynn.
APPEARANCES: Evelina Van Geutselaar for the applicants; Martin Levinson and C. Davidson for the respondent.
DECISION OF THE BOARD; October 16, 1985
1The name of the respondent is amended to read: London and District Service Workers' Union, Local 220.
2The applicants are registered nurses employed by Extendicare Health Services Inc. in a 60 bed nursing home in Port Stanley. On July 13, 1984, the respondent trade union was certified as the exclusive bargaining agent for all registered nurses employed in a nursing capacity in that Home. The applicants are the only two registered nurses in that unit. In this application filed August 19, 1985, they ask that the Board terminate the respondent's bargaining rights.
3The union says it gave notice to bargain pursuant to section 14 of the Labour Relations Act on or about July 16, 1984, met with the employer on two occasions in October, applied for conciliation and on December 28, 1984, met with the employer and a conciliation officer who had been appointed on December 7, 1984. The applicants acknowledge that these facts are correct. The union also says that on January 14, 1985, the Minister of Labour issued a notice that the conciliation officer had been unable to effect a collective agreement pursuant to section 3 of the Hospital Labour Disputes Arbitration Act, that the union and employer nominees to an interest arbitration board were appointed thereafter, that the agreed-upon chairman of that Board resigned on June 19, 1984, the parties were unable thereafter to agree upon a new chairperson, and on September 23, 1985, the Minister of Labour appointed a person to sit as chairman of the board of arbitration. Until these facts were revealed to them in the union's reply to this application, the applicants say they were unaware of them; indeed, they say the union's failure to keep them informed is one of the reasons they filed this application. The applicants do not dispute these additional facts, however, and certainly do not dispute that this process has not yet resulted in a collective agreement governing the terms and conditions of their employment.
4The applicants' representative acknowledges that they are employed in a nursing home. A nursing home is a "hospital" to which the Hospital Labour Disputes Arbitration Act, R.S.O. 1980, c.205 applies. Section 12(1) of that Act provides:
Notwithstanding section 61 of the Labour Relations Act, where a trade union that has been certified as bargaining agent for a bargaining unit of employees of a hospital has given to the employer of such employee notice under section 14 of that Act and the Minister has appointed a conciliation officer, an application for a declaration that the trade union no longer represents the employees in the bargaining unit determined in the certificate may be made only in accordance with subsection 57(2) of the Labour Relations Act.
Subsection 57(2) of the Labour Relations Act provides:
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, onty after the commencement of the last two months of its operation;
(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation, as the case may be;
(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or the making of a new agreement, only during the last two months of each year that it so continues to operate or after the commencement of the last two months of its operation, as the case may be.
5But for the provisions of the Hospital Labour Disputes Arbitration Act, a termination application would be timely where, as here, a collective agreement has not been made within one year of certification and more than thirty days have elapsed after the conciliation process has run its course. When that Act applies, however, the combined effect of the above-quoted statutory provisions is that once a conciliation officer has been appointed, an application for termination of bargaining rights may not be brought until after the interest arbitration process contemplated by the Hospital Labour Disputes Arbitration Act has resulted (as it must, eventually) in a collective agreement, and then only during the time periods specified in subsection 57(2) of the Labour Relations Act: Birchcliff Nursing Home, [1975] OLRB Rep. April 384; Salvation Army Grace Hospital, [1978] OLRB Rep. Dec. 1142; Nel Gor Castle Nursing Home, [1979] OLRB Rep. Oct. 1013; Bobier Convalescent Home, [1983] OLRB Rep. June 863.
6This application is untimely because it was filed after the appointment of a conciliation officer and before the commencement of the "open period" of a new collective agreement. In these circumstances, we are obliged to and do hereby dismiss this application.