Robert A. Wallace v. United Food & Commercial Workers International Union, Local 175, 1990 CanLII 5731

Ontario Labour Relations Board

[1990] OLRB Rep. January 65

1514-89-R Robert A. Wallace, Applicant v. United Food & Commercial Workers International Union, Local 175, Respondent v. Town of Palmerston, Intervener.

BEFORE: Brain Herlich, Vice-Chair, and Board Members J. A. Ronson and K. Davies.

APPEARANCES: Robert A. Wallace on his own behalf; Lionel G. Clarke for the respondent; P. M. Rusak and Larry Adams for the intervener.

DECISION OF THE BOARD; January 26, 1990

1In a decision dated January 9, 1990 the Board found the present application for a decla­ration that the respondent no longer represents the employees in the bargaining unit to be timely. The Board further directed that a representation vote be held. What follows are the reasons for the Board's ruling with respect to the issue of the timeliness of the application.

2The respondent was certified to represent the employees of the intervener on March 25, 1988. Negotiations followed, a conciliation officer was appointed on December 13, 1988 and on February 20, 1989, a day on which the parties met with the assistance of the officer, a Memoran­dum of Agreement was executed. Although the Memorandum was not filed in evidence in these proceedings, the parties agreed that the document contemplated ratification by employees. Shortly thereafter, however, employees voted to reject the terms of the Memorandum.

3On March 14, 1989 the applicant filed a termination application which a differently con­stituted panel of this Board dismissed as being untimely, having been filed within one year of the date of certification (Board File No. 3073-88-R)

4On April 24, 1989 a "no board" report was issued. The present application was filed on September 20, 1989. Sometime after the present application was filed the union prepared and for­warded to the employer a draft collective agreement executed by the union on September 27, 1989. The employer sought some clarification and legal advice but ultimately, on November 10, 1989, it too executed the document.

5The stated duration of the collective agreement is from December 1, 1988 to December 31, 1989 and thus, the respondent argues, includes the date of the present application.

6The union concedes that "in fact" there was no collective agreement in operation on the date this application was filed. Indeed, the union never asserted that any collective agreement was consummated prior to November 10, 1989, the date of execution by the employer. The union argues, however, that by virtue of its retrospective effect the collective agreement is a bar to the present application. The union, in other words, asserts that a collective agreement executed subse­quent to an otherwise timely termination application can, by virtue of its duration clause, retroac­tively constitute a bar to such application.

7The union relies on Mortluck Construction (1963) Limited, [1973] OLRB Rep. Apr. 204 and Cadillac Fairview Corporation Limited, 11978] OLRB Rep. Nov. 973 in support of its position.

8In both of the cases relied upon by the union it was necessary to determine when the collective agreements in question commenced and ceased operation in order to subsequently deter­mine whether the respective applications were timely under section 57(2) or section 5(4) as the case may be.

9In Mortluck Construction, supra, the incumbent union claimed the certification applica­tion was untimely by virtue of a collective agreement between the incumbent and the employer. Having regard to the duration clause of the agreement the application appeared timely. The incumbent union argued, however, that since the agreement did not specify wage rates until August 21, 1972, some four months after its stated commencement date, the agreement should be viewed as having commenced operation on August 21, 1972. The agreement would then expire one year later altering the open period accordingly and rendering the application untimely. The Board rejected this argument and concluded that the agreement envisaged on operative effect prior to its date of execution, that the term of the agreement was as stated therein and that the application was consequently timely.

10In Cadillac Fairview, supra, the Board, in order to determine the open period and, con­sequently, the timeliness of the termination application, again had to determine whether the col­lective agreement commenced operation on the date it was executed or on the (earlier) stated com­mencement date of the agreement. In this case the Board ruled the agreement commenced operation on the execution date rendering the application untimely in that case.

11There are indeed a series of cases where the Board has had to determine the precise duration of a collective agreement. Where, for example, a one year agreement is executed and made retroactive to a date prior to its execution, the operation of section 52(1) of the Act, which may deem the agreement to operate for a term of one year from the execution date, can result in an open period different from the one which would result if one considered only the stated one year term of the agreement.

12In these situations the Board has viewed the execution date (rather than the stated ear­lier commencement date) as the date upon which the agreement commences operation for the pur­pose of the timeliness of a termination or displacement application (see for example Intercontinental Warehouses Limited, [1959] OLRB Rep. Mar. 34; Seven-Up (Ontario) Limited, [1972] OLRB Rep. Nov. 965; Cadillac Fairview, supra; Boucher's Amherstview Supermarket, [1986] OLRB Rep. Nov. 1497). There are, however, situations where the facts have dictated a con­trary result (see for example Mortluck Construction, supra; Dad's Cookies Ltd., [1978] OLRB Rep. Jan. 116).

13These cases, however, do not assist the union in the present matter. All of the above cases involve situations where there is no dispute that a valid collective agreement is in force at the time the application is made. The disputes center rather on determining the open period under the relevant agreement.

14In Lesmith Limited, [1981] OLRB Rep. Feb. 190, the union argued that a termination application was untimely by virtue of a collective agreement executed shortly after the termination application was filed. It is not clear from the report whether the collective agreement purported to have retroactive effect. Despite this possible distinction we find the Board's comment (at p. 191) instructive:

The fact that a collective agreement was made subsequent to the filing of this application ... is not a relevant consideration ... The present application ... is made under section 49(1) [now 57(1)] and the employees are entitled to look at the situation at the time when the application is made. Indeed the main thrust of section 53 [now 61] is to protect the collective bargaining process. The protection of the bargaining process afforded by section 53 having run out, the respondent trade union cannot, subsequent to an application, defeat that application by signing a collective agreement with the employer.

The above, in our view, is a complete answer to the union's objection. The utility and value of retroactive provisions in collective agreements are well known and we do not wish to be under­stood as drawing any more general conclusions as to the retroactive impact of the present collective agreement. We are of the view, however, that the application was clearly timely on the date it was filed and would have been held to be timely had the hearing been held on the date of application. In those circumstances we cannot see how the subsequent signing of a collective agreement can, by reason of its stated duration including the date of this application, retroactively render this applica­tion untimely.

15It was for these reasons that we ruled in our decision dated January 9,1990 that this application is timely.