Ontario Labour Relations Board

[1987] OLRB Rep. November 1365

1941-87-M Countryside Farms Limited, Employer v. International Union of Oper­ating Engineers, Local 793, Trade Union

BEFORE: Robert Herman, Vice-Chair, and Board Members W. Gibson and E. G. Theobald.

APPEARANCES: Roger Marentette for the employer; Ms. E. M. Mitchell and Mr. Win. Conlin for the trade union.

DECISION OF THE BOARD; November 23, 1987

1. Pursuant to section 107 of the Labour Relations Act, the Minister has referred to the Board for its opinion a question concerning the authority of the Minister to appoint a conciliation officer.

2. The reference from the Minister reads, in part, as follows:

3. On August 27, 1987, the union requested the appointment of a conciliation officer under sec­tion 16 of the Labour Relations Act.

4. Following the appointment of a conciliation officer on September 9, the employer objected, by telex and letter dated September 11, and by letters dated September21 and September 30, to the union's request. Attached hereto and marked as Exhibit "A" are the letters of objection.

5. Briefly stated, the employer takes the position that voluntary recognition was granted on the condition that the employer and union would negotiate a new collective agreement separate from the collective agreement between the Heavy Construction Association of Windsor and the Council of Trade Unions. This agreement to grant voluntary recognition is contained in Minutes of Settlement entered into by the parties on November 1, 1985.

6. The employer also takes the position that the alleged agreement referred to as a "Letter of Understanding", signed on November 19, 1985, by which the employer allegedly agrees to implement the Heavy Construction Association of Windsor collective agreement, which expired on April 30, 1987 and was subsequently renewed, involved a misrepresentation to the employer. The employer states that it did not sign any collective agreement with the trade union other than the Minutes of Settlement by which it agreed to provide voluntary recognition on the above-noted condition.

7. By letters dated September23 and September 25, the union responded to the objection of the employer. Attached hereto and marked as Exhibit "B" are the letters.

8. Briefly stated, the union takes the position that the Minutes of Settlement reflect the intention of the parties to have the employer treated as a separate employer from another employer, M.B.L. International Contractors. The union states that this intent was finalized with the sign­ing of the Letter of Understanding dated November 19, 1985, by which the employer agreed to a collective agreement incorporating the terms of the Heavy Construction Association of Wind­sor agreement.

9. Having reviewed the objections to the appointment of a conciliation officer and the trade union's responses thereto, the Minister is of the opinion that a question has been raised as to his authority to appoint an officer in the circumstances of this request. Consequently the Deputy Minister has revoked the appointment of the conciliation officer, pending resolution of this mat­ter.

10. Briefly stated, the question is whether or not the employer has granted voluntary recognition andlor entered into a collective agreement with the employer [sici, thereby entitling the union to request conciliation.

11. At the hearing into this matter, the parties agreed that the employer had voluntarily recognized the union in October, 1985. The parties were in substantial disagreement with respect to whether, consequent to that voluntary recognition, a collective agreement had been entered into between them. Both parties therefore asked the Board to determine whether there had been a binding collective agreement.

12. The request for the appointment of a conciliation officer was made pursuant to section 16 of the Act, which reads as follows:

16.-(1) Where notice has been given under section 14 or 53, the Minister, upon the request of either party, shall appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement.

(2) Notwithstanding the failure of a trade union to give written notice under section 14 or the failure of either party to give written notice under sections 53 and 122, where the parties have met and bargained, the Minister, upon the request of either party, may appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement.

(3) Where an employer and a trade union agree that the employer recognizes the trade union as the exclusive bargaining agent of the employees in a defined bargaining unit and the agreement is in writing signed by the parties, the Minister may, upon the request of either party, appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement.

(4) Notwithstanding anything in this Act, where the Minister has appointed a conciliation officer or a mediator and the parties have failed to enter into a collective agreement within fifteen months from the date of such appointment, the Minister may, upon the joint request of the par­ties, again appoint a conciliation officer to confer with the parties and endeavour to effect a col­lective agreement, and, upon such appointment being made, sections 17 to 34 and 72 to 79 apply, but such appointment is not a bar to an application for certification or for a declaration that the trade union no longer represents the employees in the bargaining unit.

5. As can be seen, the sub-sections of section 16 apply in different circumstances, and where applicable give the Minister the authority to appoint a conciliation officer. Where an employer has voluntarily recognized a union in an agreement signed in writing by the parties, as has occurred in the instant case, the Minister has the authority to appoint a conciliation officer pur­suant to section 16(3). This authority lies whether or not the parties have been able to reach agree­ment on a first collective agreement.

6. Alternatively, where a collective agreement has been negotiated between the parties, then a party to the agreement can ordinarily give notice to bargain pursuant to section 53 of the Act, in which case the Minister pursuant to section 16(l) of the Act has both the authority to appoint a conciliation officer and the obligation to do so when requested by either party. Even where such notice has not been given, the Minister can appoint pursuant to section 16(2).

7. Therefore it appears to the Board that, whether or not the union has entered into a col­lective agreement with the employer, the Minister has the requisite authority to appoint a concilia­tion officer, either pursuant to section 16(3) of the Act, if the parties have never entered a collec­tive agreement, or pursuant to sections 16(1) or (2) of the Act, where the parties have previously entered a collective agreement. In other words, regardless of whether the agreement in question was a valid collective agreement, the Minister has the authority to appoint a conciliation officer.

8. Notwithstanding the provisions of section 16 referred to above, the employer argued that the Minister has no authority to appoint a conciliation officer until such time as the parties have met pursuant to their obligation under section 15 of the Act. That section reads as follows:

9. The parties shall meet within fifteen days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.

The employer argued that the evidence would show that the parties have not in fact met, within fifteen days or later, and have not as yet attempted to negotiate a collective agreement between themselves. The employer therefore submitted that as the requirements of section 15 had not been met, the Minister had no authority pursuant to section 16(3) of the Act. There was no dispute that the union has given notice to bargain.

9. We are not persuaded by this submission. Section 16(3) on its face gives the Minister the authority to appoint where there has been voluntary recognition, and does not appear to us to be made subject to any requirement contained in section 15. The employer conceded that no appli­cation pursuant to section 89 of the Act, alleging a violation by the union of its obligation under section 15, had been filed. Absent clear language, we are not prepared to read into subsections 16(1) or (2) a requirement that the parties must meet, in fulfillment of their obligations under sec­tion 15, before the Minister can otherwise appoint a conciliation officer. The language of subsec­tion 16(2), which specifically requires that the parties have met and bargained, buttresses our view that in the absence of such language (in subsections 16(1) and (3)) the parties are not required to have so met as a condition precedent to the Minister's authority to appoint a conciliation officer. To read in such a requirement would force a union or employer to take a recalcitrant party to the Board, for a declaration pursuant to section 15, before the Minister could appoint a conciliation officer and thereby attempt to facilitate the parties in reaching a collective agreement. Such an interpretation is not consistent with sound labour relations, and as we have said, absent clear lan­guage we are not prepared to read such a limitation into the Minister's power pursuant to section 16.

10. Accordingly, and assuming without deciding that the employer is correct that the parties have not yet met face to face to attempt to negotiate a collective agreement, we remain satisfied that the Minister has the authority to appoint a conciliation officer, and it is both unnecessary and inappropriate for the Board to offer an opinion as to whether the parties have previously entered into a valid collective agreement, which by common ground would have in any event expired.

11. The question referred by the Minister was "whether or not the employer has granted voluntary recognition and/or entered into a collective agreement with the employer [sic], thereby entitling the union to request conciliation." In our opinion the employer has granted voluntary rec­ognition or entered into a collective agreement, and whether or not a collective agreement has been entered into, the union is entitled to request a conciliation officer be appointed and the Min­ister has the requisite authority to so appoint one.