Ontario Labour Relations Board
[1990] OLRB Rep. January 89
2183-89-R Clarence Edwin Muir, Applicant v. Teamsters, Chauffeurs, Warehouse-men and Helpers of America Local 91, Respondent v. Acklands Limited by UniSelect Inc., Intervener
BEFORE: Robert D. Howe, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.
DECISION OF THE BOARD; January 19, 1990
1This is an application for a declaration that the respondent no longer represents the employees of the intervener at its branch in Ottawa. The matter was initially scheduled for hearing on January 10, 1990, but that hearing was adjourned on the agreement of the parties.
2The copy of the collective agreement that was filed by the applicant together with his (Form 17) application includes the following duration clause:
ARTICLE 19 DURATION OF AGREEMENT
19.01 This Agreement shall be effective from the 1st day of September, 1987 until the 31st day of August 1989 and shall continue automatically thereafter for annual periods of one year each, unless either party notifies the other, in writing, not less than thirty (30) days and not more than ninety (90) days prior to the expiration date that it desires to amend or terminate the Agreement.
3The application was filed with the Board on November 30, 1989. Documents filed with the Board by the respondent indicate that, pursuant to Article 19 of the collective agreement and section 53 of the Labour Relations Act, on June 12, 1989 the respondent sent notice to bargain to the intervener by registered mail. They further indicate that on September 18, 1989, a conciliation officer was appointed, pursuant to section 16(1) of the Act, to confer with the parties and endeavour to effect a collective agreement, and that on October 30, 1989, the Minister, pursuant to section 19(b) of the Act, informed the respondent and the intervener by notice in writing that he had decided not to appoint a conciliation board.
4It is the respondent's position, as set forth in letters to the Registrar dated December 14, 1989 and January 5, 1990, that this application is untimely. It is the applicant's position, as set forth in his letter dated January 8, 1990, that the application is timely by virtue of section 61(2)(c) of the Act.
5Section 61(2) provides as follows:
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.
[emphasis added]
6In the absence of the last three words of that subsection, it might be argued that this application was timely by virtue of being filed thirty-one days after the Minister informed the parties that he had decided not to appoint a conciliation board. However, the last three words of section 61(2) - "whichever is later" - make it clear that, in the circumstances of this case, an application of this type cannot be filed before September 18, 1990, which is the later of twelve months after the conciliation officer appointment, and thirty days after the Minister notified the parties that he did not consider it desirable to appoint a conciliation board. (If the respondent and the intervener enter into a new collective agreement prior to September 18, 1990, the earliest date on which a termination application can be filed will be further deferred to the start of the "open period" specified in section 57(2) of the Act.)
7In view of our conclusion that this application is untimely, no useful purpose would be served in relisting it for hearing. For the foregoing reasons, this application is hereby dismissed.