Ontario Labour Relations Board

[1987] OLRB Rep. October 1225

0377-87-R Leonardo Delprete, Raphael Lewis, Walter Mercsanits, Joannis Polem­idiotis, Mario Rago, Lorenzo Ritano, Nicola Rulli, Howard Bogues, Fabian Cor­mier, Douglas Wood, Gaspare Ferrante, Liberal Oliveria, Lionel Willie, Appli­cants v. Shopmen's Local Union No. 834 of the International Association of Bridge, Structural and Ornamental Ironworkers, Respondent v. Connie Steel Products Limited, Intervener

BEFORE: Ken Petryshen, Vice-Chair, and Board Members G. 0. Shamanski and H. Kobryn.

APPEARANCES: Leroy A. Crosse for the applicants; Roy B. Sim, Harry Colpitts and Wilbert Dove for the respondent; Peter Israel, Blake Gross and Brian Gross for the intervener.

DECISION OF THE BOARD; October 20, 1987

1. This is an application under section 57 of the Labour Relations Act for a declaration that the respondent trade union no longer represents the employees of Connie Steel Products Limited in the bargaining unit for which it is the bargaining agent.

2. After determining the facts and entertaining submissions from counsel for the appli­cants, and after recessing to consider the matter, the Board made the following oral ruling at the hearing on July 6, 1987:

The respondent and the intervener were bound by a collective agreement which expired on December 31, 1986. An application for conciliation ser­vices was made by the respondent on April 15, 1987. The appointment of a conciliation officer was made on April 29, 1987. This application was filed with the Board on May 7, 1987. The respondent has taken the position that this application is untimely.

Counsel for the applicants made a valiant attempt to convince the Board that it should not treat this application as being untimely. After giving careful consideration to the submissions of counsel for the applicants, the Board finds that this application is untimely. Accordingly, the application is dis­missed.

The reasons for the Board's decision are as follows.

3. The facts in this case were not in dispute and were not complicated, as disclosed by the Board's oral ruling reproduced above. The respondent gave the intervener notice to bargain prior to the expiry of the collective agreement by letter dated October 28, 1986. Approximately three and one half months after the collective agreement expired, the respondent made an application for conciliation services which resulted in the appointment of a conciliation officer on April 29, 1987. This termination application was filed with the Board approximately a week after the concili­ation officer was appointed. The respondent's representative argued that the appointment of a conciliation officer in this factual setting created a bar to the termination application.

4. Section 57 is a provision of the Act which permits employees during certain periods of time to terminate their union's bargaining rights. Employees are not allowed to make applications under section 57 at any time they become disenchanted with their bargaining agent. As well as the time constraints contained within section 57, the section is made subject to section 61 of the Act. Sub-section 61(2), the relevant sub-section for our purposes, provides as follows:

(2) Where notice has been given under section 53 and the Minister has appointed a conciliation officer or a mediator, no application for certification of a bargaining agent of any of the employ­ees in the bargaining units as defined in the collective agreement and no application for a decla­ration that the trade union that was a party to the collective agreement no longer represents the employees in the bargaining unit as defined in the agreement shall be made after the date when the agreement ceased to operate or the date when the Minister appointed a conciliation officer or a mediator, whichever is later, unless following the appointment of a conciliation officer or a mediator, if no collective agreement has been made,

(a) at least twelve months have elapsed from the date of the appointment of the conciliation officer or a mediator; or

(b) a conciliation board or a mediator has been appointed and thirty days have elapsed after the report of the conciliation board or the mediator has been released by the Minister to the parties; or

(c) thirty days have elapsed after the Minister has informed the parties that he does not consider it desirable to appoint a conciliation board,

whichever is later.

5. Sections 57 and 61 are reflective of a statutory scheme which attempts to achieve stabil­ity in labour relations. Employees can change their bargaining agent or elect to terminate their union's bargaining rights only during certain periods of time as provided for in the Act. A system in which employees could affect changes to representation rights whenever they wanted would be extremely unstable and could seriously harm the collective bargaining interests of all concerned. On the facts of this case, the applicants could have applied between November 1, 1986 and April 29, 1987 to terminate the respondent's bargaining rights. In the circumstances of this case, the clear wording of sub-section 61(2) dictates that this application cannot be made after the Minister appointed a conciliation officer.

6. Counsel for the applicants recognized that the clear wording of sub-section 61(2) of the Act made the application before us untimely. However, counsel argued that, for essentially two reasons, the Board should not give effect to sub-section 61(2). Counsel argued that freedom of association, and the right to disassociate implied therein, is an extremely important right employ­ees have. Since the appointment of a conciliation officer in these circumstances can affect this important employee right, the trade union is required to give employees notice of its conduct which causes such an appointment to occur. In this case, the union was obligated to advise employ­ees that it gave notice to bargain and applied for the appointment of a conciliation officer. Counsel submitted that the principle of British common law that one must give notice to others conceming matters which may affect their rights, applies in the circumstances of this case. Counsel suggested that it was particularly appropriate to apply the principle in this case since sub-section 61(2) was in the nature of a technical provision. Counsel also argued that sub-section 61(2) should be given no force and effect since it restricts employees' rights to terminate a union's bargaining rights and in so doing is in conflict with the employees' freedom of association guaranteed by section 2(d) of the Charter. These arguments were not supported by any authority.

7. In considering counsel for the applicants' first submission, the Board was prepared to assume, without deciding, that the respondent did not advise the employees of its notice to bargain and of its application for the appointment of a conciliation officer. The Board is satisfied that there is no obligation on the trade union to advise the employees in the bargaining unit of its notice to bargain or of its application for the appointment of a conciliation officer. Even if such an obliga­tion exists and was breached by the respondent, we cannot see how this assists the applicants. Sub­section 61(2), contrary to the position taken by counsel for the applicants, is a substantive, not a technical provision. The Board does not have a discretion when it comes to applying the clear terms of the section. The fact that the union may not have met its obligations, which we find is not the case, does not give the Board the authority to ignore the clear wording of sub-section 61(2). We note that counsel for the applicants recognized that the employer would not have any obliga­tion to advise employees if it gave notice to bargain or applied for the appointment of a concilia­tion officer, even though such conduct on the employer's part also would lead to the imposition of a bar when a conciliation officer was appointed.

8. In considering counsel for the applicants' second submission, the Board was prepared to assume, without deciding, that a large majority of the employees in the bargaining unit had volun­tarily indicated an intention to terminate the respondent's bargaining rights. During the course of counsel's second submission, and in response to an inquiry by the Board, counsel advised the Board that notice of this Charter argument had not been given to either the Attorney General of Canada or the Attorney General of Ontario. Counsel requested the Board to refer the Charter issue to a Court and indicated he would give notice of that proceeding to the appropriate Attor­ney(s) General. Counsel did not provide us with any indication as to the source of the Board's power to refer the Charter issue to a Court.

9. The Board previously has indicated that Charter matters should be placed before the Board in an appropriate way. In order to ensure a full and fair hearing, the Board has decided that Charter challenges ought not to be entertained in the absence of notice to the appropriate Attor­ney(s) General. See, Dominion Paving Limited, [1986] OLRB Rep. July 946. The fact that no such notice was given in this case is sufficient reason to reject the applicants' second argument. We are satisfied that the Board does not have the power to refer the Charter issue to a Court for determi­nation. Under section 24(1) of the Charter, only persons whose charter rights or freedoms have been infringed or denied may apply to a Court of competent jurisdiction for a remedy. Even if the Board had the power to initiate such a reference, we are of the view that it would not be appro­priate to do so in the circumstances of this case.

10. In passing, the Board notes that the Charter argument made by counsel for the appli­cants in this case was addressed in a previous decision of the Board. In Egan Visual Inc., [1986] OLRB Rep. Aug. 1075, it was argued that section 40(a) and other sections of the Act which place restrictions on when employees can apply to terminate a union's bargaining rights conflict with the employee's freedom of association guaranteed by section 2(d) of the Charter. We concur with the Board's response to this argument which was as follows:

3. ... Further, in our view, the freedom of association protected by section 2(d) of the Charter does not mean that all restrictions on when employees can apply to terminate a union's bargain­ing rights, or have another union apply to become their bargaining agent, are invalid. Such restrictions are required to provide stability in labour relations and to allow the system of labour relations contemplated by the Labour Relations Act to function in an orderly manner. In that such restrictions form an essential part of an overall statutory scheme which serves to enhance and protect employees' freedom of association, they do not result in any real loss in the freedom to associate on the part of employees. In the alternative, if the time limits do in fact impinge on employees' freedom of association, then as part of a statutory scheme designed to bring order and stability to labour-management relations we are satisfied they are justified under section 1 of the Charter as limits prescribed by law that can be demonstrably justified in a free and demo­cratic society....