[1988] OLRB Rep. January 9
2066-87-R Canadian Paperworkers Union, Applicant v. Boise Cascade Canada Ltd., Respondent v. Lumber and Sawmill Workers' Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of North America, Intervener #1 v. Local Union 559 of the International Brotherhood of Electrical Workers, Intervener #2
BEFORE: Nimal V. Dissanayake, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.
APPEARANCES: N. Jesin, M. Hunter and C. Makowski for the applicant; D. T. Wakely, D. B. Francis and J. Harty for the respondent; Laurence Arnold and Rene Brixhe for Intervener #1, Win. J. Moore for Intervener #2.
DECISION OF THE BOARD; January 6, 1988
The name of Intervener #1 is amended to read: "Lumber and Sawmill Workers' Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of North America".
This is an application for certification in which the applicant seeks bargaining rights for a bargaining unit of employees of the respondent described as follows:
all employees of the respondent employed in its Kenora Sawmill complex and yard operations, including any additional operations in conjunction with the present Mill and Yard operations, save and except foremen, persons above the rank of foreman, office and sales staff.
After the opening addresses from the parties, the representative for Intervener #2 informed the Board that he was satisfied that the bargaining rights held by Intervener #2 were not affected by this application, and that he was accordingly withdrawing from this proceeding.
Counsel for Intervener #1 (hereinafter referred to as "Local 2693") took the position in his opening address that this application is untimely. Counsel for the respondent also submitted that this application is untimely under section 61(2) of the Labour Relations Act and that it ought to be dismissed. The Board heard submissions from all counsel on this timeliness issue.
The following facts are not in dispute between the parties. Local 2693 was certified by the Board on June 1, 1986 as bargaining agent for the employees affected by this application. The most recent collective agreement between these two parties had an expiry date of August 31, 1986. On April 23, 1986, Local 2693 gave notice of its desire to bargain with respect to a renewal collective agreement. The Board finds that this notice was given in accordance with the collective agreement and that therefore, by virtue of section 53(2) of the Act, it was in compliance with section 53(1). On March 19, 1987, the parties were notified of the appointment of a conciliation officer by the Minister of Labour. A "no-board" report was issued on June 2, 1987. On June 8, 1987, the parties were advised that a mediator has been appointed to assist in negotiations. The present application for certification was filed on October 27, 1987.
In support of their position that this application is untimely, counsel for the respondent and counsel for Local 2693 rely on section 61(2) of the Labour Relations Act which reads as follows:
61.-(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.
Counsel submits that whether the 12-month period contemplated in section 61(2)(a) is calculated from the date of appointment of the conciliation officer or of the mediator, this application filed on October 27, 1987 is clearly untimely.
Counsel for the applicant on the other hand disagrees that this application is untimely. While he concedes that the appointment of a conciliation officer or mediator normally triggers the provisions of section 61(2), he argues that section 61(2) envisages a "lawful" appointment of a conciliation officer or mediator. He submits that for an appointment of a conciliation officer or mediator to be lawful, at the time of such appointment the trade union must have bargaining rights. In addition, he submits that for the 12-month bar in section 61(2) to apply, there must be a reasonable expectation that the incumbent trade union's bargaining rights will subsist for a period of at least 12 months from the date of appointment of the conciliation officer or mediator. Counsel submitted that he was prepared to lead evidence that Local 2693 had either abandoned bargaining rights through inaction prior to the appointment of the conciliation officer or mediator, or that Local 2693 does not intend to retain bargaining rights for a period of 12 months from the date of such appointment. In the former situation, counsel claims that the appointments in question are a nullity and of no legal consequences. In the latter situation, section 61(2) does not apply since it is predicated on the condition that bargaining rights will continue for at least 12 months. Counsel further submits that to dismiss this application will be to deny employees a right to select a trade union of their choice. Finally, counsel submits that in the event the Board does not accept his submissions, the Board should defer its decision to allow the applicant to file a section 89 complaint.
The applicant is not claiming that there has been formal abandonment of bargaining rights by Local 2693. Nor is there a prior Board decision to that effect. The applicant is alleging de facto abandonment on the basis that since the expiry of its previous collective agreement, Local 2693 had been inactive for over a period of a year preceding the appointment of the conciliation officer.
For the purpose of this decision, the Board is prepared to accept the applicant's allegation of inaction by Local 2693 as proven. While failure by a trade union to pursue its bargaining rights over a lengthy period leaves much to be desired, the appointment of the conciliation officer and Local 2693's participation in meetings with the officer is a clear indication that it intended to resume pursuing its bargaining rights. In the face of the clear wording of section 6 1(2), the Board is not prepared to go behind the conciliation appointment where the claim is based on an alleged de facto abandonment. In Midmetro Plastics Limited, [1985] OLRB Rep. Feb. 302, the Board found that there had in effect been de facto abandonment by the incumbent trade union. However, while noting that it was troubled by the union's inaction and the technical nature of its defence based on the appointment of a conciliation officer, the Board nevertheless held that the appointment of a conciliation officer rendered the application for termination of bargaining rights untimely. Similarly, the Board is of the view that no application is timely on these facts before the Board, until the timeliness provisions of section 61(2) have been met.
The Board does not agree that for section 61(2) to operate there has to be some guarantee that the incumbent's bargaining rights will continue for a period of 12 months. Even assuming that there is some evidence of intention on the part of Local 2693 to abandon bargaining rights as the applicant claims, the Board cannot act on the basis of a future event.
The Board is not persuaded by the applicant's plea based on employee freedom of choice. The fact is that the employees in question and the applicant did have the benefit of an open period during which there was an opportunity to challenge Local 2693's bargaining rights. Having failed to act before the open period ended by the onset of the conciliation process, there is no justification for complaint now.
The Board is not disposed to defer a decision in this application to allow the applicant to file a complaint under section 89. The Board is not prepared to speculate as to the exact nature of the contemplated complaint, whether the applicant will be successful, and if so what remedy will be directed by the Board. In any event, if a certification application becomes timely as a result of some remedy obtained in such a proceeding or by the satisfaction of the time limits in section 61(2), this decision will not prejudice the right of the applicant to file another application at the appropriate time.
For the foregoing reasons, this application is hereby dismissed.