Ontario Labour Relations Board
[1992] OLRB Rep. August 938
0952-92-R Harc Incorporated, Applicant v. Ontario Public Service Employees Union, Respondent
BEFORE: Judith McCormack, Vice-Chair, and Board Members W. A. Correll and A. Hershkovitz.
APPEARANCES: S. Fraser and P. Melady for the applicant; Christopher Dassios and Ed Ogibowski for the respondent
DECISION OF THE BOARD; August 6, 1992
This is an application under section 60 [formerly section 59] of the Labour Relations Act in which the applicant employer requested that the Board terminate the bargaining rights of the respondent union on the basis that the latter did not give notice to bargain within sixty days following certification.
On the day set for the hearing of this matter, the Board invited the parties to stipulate the facts upon which they relied. The respondent union then indicated that it had been certified to represent employees on March 25, 1992. In early April, an internal control form was sent to the union's regional membership services department with the effect that a negotiator from the Guelph regional office was assigned to this bargaining unit. However, at that time the Guelph regional office was experiencing staffing difficulties, and as a result, indicated that it could not handle the matter.
The staff complement at the Guelph regional office was due to be increased by one. However, that person was not appointed until July of 1992. In the meantime, one of the other staff representatives contacted members of this bargaining unit and a bargaining committee was appointed. During this period, the employer had the name of a contact person on the forms that were filed during the certification process, but did not contact anyone from the union. On June 26, 1992, the employer brought this application to terminate the union's bargaining rights. On July 3, notice to bargain was served by the union. The applicant employer has declined to enter into negotiations pending the disposition of this application. Finally, counsel for the union indicated that he had with him a petition signed by sixteen out of twenty-three employees in the bargaining unit to the effect that this application should be dismissed.
The applicant employer stipulated that it had suffered prejudice as a result of the respondent union's delay in sending notice to bargain in the following manner. In February of 1992, a review team report was issued by the Ministry of Community and Social Services. One of the recommendations in this report was that the employer review its personal policies and consult with staff in this regard. Since that time, the employer has been in direct communication with employees in the bargaining unit about their preferences, and the result has been that a number of policies and structures have been developed that deal with issues normally addressed in collective bargaining, including the distribution of work, and policies that confer benefits on employees. Other policies are planned. The day after this application was filed, the employer implemented those policies. Among other things, the employer was concerned that the union might file an unfair labour practice complaint.
Both counsel indicated that they were not in a position to dispute the facts stipulated by the other with the exception that counsel for the employer contended that any petition that was not filed in a timely manner in this application was now irrelevant. In addition, during argument it appeared that he took issue with the assertion that the union had appointed a bargaining committee.
The Board then heard the submissions of counsel. In this regard, counsel referred to Medi-Park Lodges Inc., [1979] OLRB Rep. Oct. 1007, Yarntex Perth, Division of Yarntex Corporation Limited, [1975] OLRB Rep. Feb. 137, Bois A. Lechance Lumber Limited, [1984] OLRB Rep. Jan. 1, United Counties of Stormont, Dundas and Glengarry, [1979] OLRB Rep. April 354, Trizec Equities Limited, [1978] OLRB Rep. Feb. 189, F. CM. Construction Limited, [1982] OLRB Rep. May 670.
The Board subsequently gave the following oral decision:
Having carefully considered the parties' submissions and those of the facts relied upon by the parties which are undisputed, we conclude on the basis of the Board's jurisprudence that the application should be dismissed. The amount of delay involved here is not lengthy, the explanation advanced by the respondent indicates inadvertence rather than an intention to sleep on its rights, and we are not persuaded that any prejudice suffered by the employer results from the respondent's conduct.