Jorge Silva v. Labourers' International Union of North America, Local 1059

[1987] OLRB Rep. June 828

0176-87-R Jorge Silva, Applicant v. Labourers' International Union of North America, Local 1059, Respondent v. Co-Fo Concrete Forming Construction Limited, Intervener

BEFORE: Harry Freedman, Vice-Chair, and Board Members J. Wilson and R. Montague.

APPEARANCES: John H. McNair and Jorge Silva for the applicant; L. A. Richmond, J. MacKinnon and C. Pike for the respondent; Peter F. Chauvin and Marie Miszczak for the intervener.

DECISION OF THE BOARD; June 5, 1987

The Board delivered the following decision orally at its hearing in this matter on May 27, 1987:

This is an application filed on April 21, 1987 under section 123 of the Labour Relations Act for a declaration terminating the bargaining rights of the respondent.

An application was made on March 30, 1987 by the respondent in this case for a direction to settle a first collective agreement under section 40a of the Act. The first contract application was heard by the Board, differently constituted, on April 15, 16, 21 and 22. That panel of the Board issued a decision directing settlement of the first contract by arbitration on April 22, 1987.

The respondent herein was certified in October 1985 and the Minister advised the parties that he did not consider it advisable to appoint a board of conciliation on June 13, 1986.

Section 123(1) of the Act states:

"If a trade union does not make a collective agreement with the employer within six months after its certification, any of the employees in the bargaining unit determined in the certificate may apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit."

All parties before us agreed that this application may be entertained by the Board, but counsel for the respondent submits that section 40a(22) directs the Board to dismiss this application. Section 40a(22) provides:

"Notwithstanding subsection (2), where an application under subsection (1) has been filed with the Board and a final decision on the application has not been issued by it and there has also been filed with the Board, either or both,

(a) an application for a declaration that the trade union no longer represents the employees in the bargaining unit; and

(b) an application for certification by another trade union as bargaining agent for employees in the bargaining unit,

the Board shall consider the applications in the order that it considers appropriate and if it grants one of the applications, it shall dismiss any other application described in this section that remains unconsidered."

The panel of the Board seized with the application that was made under section 40a did not have the instant application before it on April 22, 1987, although it was filed with the Board on April 21, 1987. Counsel for the applicant submits that the Board cannot deprive employees of the right to have this application for a declaration heard without having considered what order to deal with this application and the application for a direction under section 40a. Counsel submits that the Board did not consider this application when it gave its decision on April 22, 1987.

Section 102(9) of the Act states:

"The chairman or a vice-chairman, one member representative of employers and one member representative of employees constitute a quorum and are sufficient for the exercise of all the jurisdiction and powers of the Board."

In this case, this panel of the Board has before it an application filed during the course of a hearing in an application for a direction under section 40a. Section 40a contemplates that this circumstance might arise, and permits the Board to deal with it. We have the jurisdiction to consider the appropriate order of dealing with these applications by virtue of section 102(9) of the Act.

In our opinion, given the time of the filing of the instant application, in the midst of the hearing of the application made under section 40a, it appears to us that this application ought to be considered subsequent to the application for a direction under section 40a. We do so principally on the ground that the panel seized with the application under section 40a had nearly completed its hearing of that application. An application affecting the right of a trade union to represent employees in a bargaining unit requires time to process under the Board's Rules of Procedure since a terminal date must be fixed and notices to employees must be posted. We do not think it is appropriate to suspend the continuation of a hearing in a section 40a application in order to process the kind of applications contemplated by section 40a(22)(a) and (b).

Therefore, we hereby find that it is appropriate to consider this application after the application for a direction settling the first collective agreement by arbitration was considered by the Board.

Having made that determination, the latter portion of section 40a(22), which states:

"...if it grants one of the applications, it shall dismiss any other application described in this section that remains unconsidered.",

directs the Board to dismiss this application.

Therefore, for the reasons aforesaid, this application is hereby dismissed.