[1985] OLRB Rep. January 69
2041-84-R Consolidated Bathurst Packaging Limited, Applicant, v. International Union of Operating Engineers and its Local No. 796, Respondent.
BEFORE: Robert D. Howe, Vice-Chairman, and Board Members J. A. Ronson and B. L.
Armstrong.
APPEARANCES: Thomas A. Stefanik, Ronald Gruber and Bernie Holmes for the applicant; no one appearing for the respondent.
DECISION OF THE BOARD; January 18, 1985
1. This is an application under section 59(2) of the Labour Relations Act for a declaration that the respondent no longer represents the employees in the bargaining unit for which it is the bargaining agent.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. Since no one appeared on behalf of the respondent at 9:30 a.m. on the day of hearing of this matter, the hearing was recessed until 10:00 a.m. as a matter of courtesy in view of the possibility that the representative(s) of the respondent might have been delayed. When no one had appeared on behalf of the respondent by 10:00 a.m., the Board proceeded to hear the application.
3. Section 59(2) of the Act provides:
Where a trade union that has given notice under section 14 or section 53 or that has received notice under section 53 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of any of the employees in the bargaining unit and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit.
4. On December 21, 1981, the applicant and the respondent entered into a collective agreement, effective from March 22, 1981, to March 21, 1983, in respect of a bargaining unit consisting of "all stationary engineers holding Operating Engineers' Certificates in good standing employed in the Boiler Room of the Plant of the company located at 730 Islington Avenue South, Toronto, Ontario." On March 1, 1982, the boiler system at that plant was switched over to an automatic system. As a result no stationary engineers were required after that date. (One stationary engineer remained in the employ of the applicant, but was transferred into another bargaining unit, in respect of which the International Woodworkers of America, Local 2-76, held bargaining rights. That individual has since resigned from employment with the applicant.) On February 7, 1983, the respondent, pursuant to section 53(1) of the Act, gave the applicant written notice of its desire to bargain with a view to the renewal, with modifications, of that collective agreement. After receiving that notice, the applicant "did nothing", and heard nothing further from the respondent. The present termination application was filed with the Board on October 3, 1984. The respondent did not file a reply and, as noted above, did not appear at the hearing.
5. In a situation in which there are no employees in the bargaining unit, the Board will generally dismiss an application for termination of a union's bargaining rights where the union demonstrates a continued interest in those bargaining rights by, for example, attending at the hearing to provide an explanation for its failure to commence (or continue) to bargain within the time period specified in the section 59(2). See, for example, Rapid Ready-Mix Limited, [1982] OLRB Rep. Sept. 1348; International Harvester Company of Canada, Limited, [1972] OLRB Rep. July 762; and BLH-Bertrum Ltd., [1967] OLRB Rep. Oct. 652. However, in the absence of any such explanation or demonstration of a continued interest by the respondent in the bargaining rights which it has failed to exercise, the Board may appropriately exercise its discretion under section 59(2) to terminate those bargaining rights without a vote under section 59(2). See, generally, Darrigo's Supermarkets Ltd., [1982] OLRB Rep. Jan. 32; Fuller's Restaurant, [1981] OLRB Rep. Feb. 156; and Canwood Lachute, [1979] OLRB Rep. Dec. 1140.
6. In the present case, the respondent gave the applicant written notice to bargain on February 7, 1983, but did not thereafter meet with the applicant to bargain or do anything else to demonstrate a continued interest in its bargaining rights. Moreover, the respondent neither replied to this application nor appeared at the hearing. Having regard to all of the circumstances, the Board finds this to be an appropriate case in which to exercise its discretion under section 59(2) to terminate the respondent's bargaining rights without a representation vote.
7. Accordingly, the Board hereby declares that the respondent no longer represents the employees of the applicant in the bargaining unit set forth above, for whom the respondent has heretofore been the bargaining agent.