[1985] OLRB Rep. February 302
2511-84-R George Mihailidis, Applicant, v. Canadian Union of Operating Engineers & General Workers Local 101, Respondent, v. Midmetro Plastics Limited, Intervener
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members C. A. Ballentine and F. W. Murray.
APPEARANCES: George Mihailidis on his own behalf,' no one for the respondent,' John Cautius and Trudy Scherer for the intervener.
DECISION OF THE BOARD; February 5, 1985
This is an application for termination of the respondent's bargaining rights made pursuant to section 57 of the Labour Relations Act. A hearing in this matter was held in Toronto on January 31, 1985. No one appeared for the respondent union.
The facts are not in dispute. In September, 1982, the union was certified to represent the employees of the intervener, Midmetro Plastics Limited. Notice to bargain was given, and some bargaining took place, but it was inconclusive. On February 18, 1983, the Minister appointed a conciliation officer to meet with the parties and assist them to make a collective agreement. There were two meetings: March 2,1983 and April 12, 1983. There was no collective agreement reached.
Nothing happened for almost a year. The union did not try to contact the employer to renew negotiations, nor, it seems, did it have any contact with the employees. In February, 1984, on its own initiative, the employer sent the union a new counter-offer. There was no union response. In April and May of 1984, the employer contacted the conciliation officer and was told that he had been unable to get any response from the union and assumed, therefore, that it had no continued interest in representing the employees. The applicant told the Board that he was unaware of any union activity since the months immediately following the union s certification. So far as he was aware, there have been no meetings or other contact with the employees for almost two years. He concluded, not unreasonably, that the union was no longer interested in representing the employees. That is why he brings the present application.
The only recent indication from the union is its letter filed in response to this application. In the letter, the union takes the position that the parties are still in conciliation (which is technically correct) and points to section 61(l)(b) of the Act which reads as follows:
Subject to subsection (3), where a trade union has not made a collective agreement within one year after its certification and the Minister has appointed a conciliation officer or a mediator under this Act, no application for certification of a bargaining agent of, or for a declaration that a trade union no longer represents, the employees in the bargaining unit determined in the certificate shall be made until,
(b) thirty days have elapsed after the Minister has released to the parties a notice that he does not consider it advisable to appoint a conciliation board.
This letter is dated December 13, 1984. In the six weeks between drafting this letter and the date of hearing, the union made no effort to contact the employer or the employees.
We are troubled by the facts in this case and the technical basis upon which the application is being resisted. It is difficult to understand why a responsible trade union would effectively abandon a group of employees then resist their effort to terminate bargaining rights which have not been actively asserted. Indeed, it is the union's very inaction which, it seems, led the employer and the conciliation officer to believe that the union was no longer interested in representing the employees. It is difficult to envisage any other practical motivation but to frustrate its former supporters and delay the inevitable. But the union is right: until the conciliation process is formerly completed by the issuance of a no-board report and thirty days have gone by, no application for termination can be made.
For the foregoing reasons, then, this application must be dismissed. We wish to make it clear, however, that the dismissal is without prejudice to the right of the employer (under section 59) or the employees (under section 57) to make a later application when the timeliness requirements have been met.
CONCURRING OPINION OF BOARD MEMBER C. A. BALLENTINE;
I agree with my colleagues that this application must be dismissed. However, it is clear that the union has not made any effort to represent these employees for almost two years. In my view, it should do the responsible and honourable thing: surrender its certificate.