[1991] OLRB Rep. June 765
3308-90-R Hevac Fireplace-Furnace, Applicant v. United Steelworkers of America, Respondent v. Hevac Fireplace Furnace Manufacturing Ltd., Intervener
BEFORE: Nimal V. Dissanayake, Vice-Chair, and Board Members G. O. Shamanski and C. McDonald.
APPEARANCES: Robert Biggley for the applicant; Jonathan Eaton and Peggy McComb for the respondent; Mario Borg, David Borwick and Giuseppe Ferrara for the intervener.
DECISION OF THE BOARD; June 11, 1991
The name of the respondent is amended to read: "United Steelworkers of America".
This is an application for termination of bargaining rights filed pursuant to section 57 of the Labour Relations Act. At the commencement of the hearing, counsel moved for dismissal of the application on the basis that it was untimely. The Board heard evidence and submissions on the issue of timeliness and this decision deals solely with that issue.
The evidence indicates the respondent union and intervener employer were parties to a collective agreement which expired on February 28, 1991. Notice to bargain for renewal of the collective agreement was given on December 20, 1990. The union filed a request for the appointment of a conciliation officer on March 1, 1991. By memorandum dated March 11, 1991, the Deputy Minister appointed Ms. D. Howe as conciliation officer to assist the parties.
The application for termination before us was mailed by regular mail on March 12, 1991 and was received by this Board on March 14, 1991.
The following provisions are relevant in determining the timeliness of an application for termination. Section 6 1(2) of the Act reads:
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agreement and no application for a declaration that the trade union that was a party to the collective agreement no longer represents the employees in the bargaining unit as defined in the agreement shall be made after the date when the agreement ceased to operate or the date when the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.
Section 75(1) of the Rules of Procedure reads as follows:
75.-(1) Where a document is required to be filed by these Rules, filing shall be deemed to be made,
(a) at the time it is received by the Board; or
(b) where it is mailed by registered mail addressed to the Board at its office at 400 University Avenue, Toronto, Ontario, M7A 1X'4, at the time it is mailed.
Since the application for termination was sent by regular mail, under section 75 of the Rules of Procedure it is deemed to be filed on the date it was received by the Board, that is March 14, 1991. Since the conciliation officer was appointed on March 11th, it is beyond doubt that the application would be untimely under section 61(2) of the Act.
The applicant's position simply is that he was not aware that there was any time deadline for the filing of this application. He did not obtain the forms until March 10th and it took him two days to get the application ready for mailing.
Counsel for the intervener recognized that prima facie the application was untimely. Nevertheless he took the position that the purported appointment of the conciliator was a nullity. He submits that section 61(2) contemplates a valid appointment of a conciliation officer before the deadline for a timely application and that in the absence of such a valid appointment, the "open period" continues. On that basis, counsel argued that the application was timely.
Counsel for the intervener made three arguments in support of his position that the application was timely. Firstly, he argued that service of the request for the appointment of a conciliator, was not served on the respondent as required by the terms of the affidavit of service which appears on the form made available by the Ministry. In his view this defect in service of the request on the employer rendered the appointment of the conciliation officer a nullity. The respondent took the position that service was effected as required by the form and that in any event the validity of the Minister's appointment of a conciliation officer was not affected by any defect in service.
Counsel for the union also relied on section 113(3) of the Labour Relations Act, and section 18 of the Statutory Powers Procedure Act. The union took the position that neither provision applied to a decision by the Minister to appoint a conciliation officer.
The Board finds that there is no merit whatsoever in counsel's arguments based on sections 113(3) of the Labour Relations Act and section 18 of the Statutory Powers Procedure Act. The only acts of the Minister covered by section 113(3) of the Labour Relations Act are (a) a notice from the Minister that he does not consider it advisable to appoint a conciliation board and (b) a notice from the Minister of a report of a conciliation board or of a mediator. It does not include a notice of appointment of a conciliation officer. Similarly, section 18 of the Statutory Powers Procedure Act does not govern the appointment of a conciliation officer by the Minister, because section 3 of that Act limits the application of section 18 to situation where the tribunal (in this case the Minister) is required to hold a hearing before making the decision. The Minister is not so required to hold a hearing before appointing a conciliation officer.
The Board is also in agreement with counsel for the union that even if the service of the request on the employer did not meet the terms found on the form (we make no finding in this regard) that does not affect the validity of the appointment of a conciliation officer pursuant to that request. There is no requirement in the Act or the rules of service of a request on the employer. That is an administrative requirement set out by the Minister's office. In our view, such a requirement cannot affect an appointment of a conciliation officer, which is otherwise valid under the applicable legislation. The employer's submission is analogous to the argument made by the employer in an arbitration proceeding in Re. Hanrahan's Tavern, December 11, 1989 unreported, (Dissanayake) that the defective service of a request to appoint an arbitrator under section 45 of the Labour Relations Act rendered the appointment of the arbitrator pursuant to the request a nullity, and that therefore the arbitrator had no jurisdiction to hear the grievance. It was held that a requirement of service implemented by the office of arbitration in the course of administering section 45 does not affect the jurisdiction of an arbitrator whose appointment otherwise met the requirements of the Act. The form entitled "Request for appointment of conciliation officer", like the form used to request an arbitrator under section 45, is not a form that is statutorily prescribed. It is something developed for purposes of efficient administration. A failure to meet an administrative requirement contained in such a form in our view, does not affect the validity of the appointment of the conciliation officer.
While the Board has dealt with the legal arguments made by counsel for the intervener, even if we had found that one or more of those positions had any merit, in the particular circumstances here, the Board would not have allowed the employer to rely on those arguments. The uncontradicted evidence is that, once the conciliation officer was appointed pursuant to the allegedly defective request, the employer met with the conciliation officer on April 3, 1991 in an effort to effect a collective agreement and with her assistance was able to execute a memorandum of settlement on the only issue that remained unresolved. The employer did not object to the validity of the officer's appointment nor was a request made to the Minister that her appointment be revoked. It is uncontradicted that the appointment of the conciliation officer was questioned for the first time only after the present application was filed and its timeliness was challenged by the union.
In our view, it is not open to the employer in the context of a termination application, to make technical and legal arguments challenging the validity of the appointment of a conciliation officer, where it had waived any irregularity by failing to object when it first became aware of the appointment. Here the employer not only failed to object but actively participated and made use of the services of the conciliator. Having done so, it is simply too late for the employer to claim at the hearing of an application for termination that the appointment of the officer was void ab initio.
The instant application is clearly untimely, under the Act. While we have some sympathy for the applicants' plea of ignorance of the timeliness requirements, there are very sound policy reasons for the existence of those requirements and the Board must give effect to the clear legislative intent.
For all of the foregoing reasons, we find this application to be untimely and accordingly it is hereby dismissed.