Ontario Labour Relations Board
[1994] OLRB Rep. September 1233
2240-94-M International Union of Woodworkers, Local 2693, Applicant v. Isadore Roy Lumber Limited, Responding Party
BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members R. W. Pirrie and B. L. Armstrong.
APPEARANCES: James Fyshe and Wilfred McIntyre for the applicant; K. R. Valin and Bert Roy for the responding party.
DECISION OF THE BOARD September 30, 1994
1This is a reference from the Minister to the Board pursuant to section 109 of the Labour Relations Act regarding a union request for first contract arbitration pursuant to section 41 of the Act and an employer request for a last offer vote pursuant to section 40 of the Act.
2The terms of reference are as follows:
The Union requested first contract arbitration in accordance with section 42 (1.2) of the Labour Relations Act from the Minister on August 29, 1994. This request was received in the course of ordinary mail on September 7, 1994.
On August 31, 1994, the employer requested the Ontario Labour Relations Board to proceed with a last-offer vote in accordance with section 40 of the Act. This request was delivered by courier and received September 1, 1994.
The union objected to the request for last-offer vote during a telephone conversation subsequently confirmed in writing on September 14, 1994. They claimed the union had not received a copy of the last offer. The employer sent correspondence to the Ministry dated September 13, 1994 indicating the last-offer was sent to the union.
Both sections 40 and 41 of the Labour Relations Act require the Minister to take action and as such the Minister has directed the Labour Relations Board to hold a last-offer vote. This vote is scheduled for October 3, 1994. First contract arbitration has commenced and the parties have selected nominees for this process.
The Minister is of the view that it would be appropriate to refer to the Labour Relations Board the question of whether to proceed under sections 40 and 41 simultaneously or whether one section takes precedence over the other.
Accordingly, the following questions are referred to the Labour Relations Board for its advice:
(i) Given that the Minister has directed that a last-offer vote be held and such is scheduled for October 3, 1994 should the vote proceed and if so on what terms, if any?
(ii) Should the Minister proceed under sections 40 and 41 simultaneously?
(iii) Does the application under section 40 take precedence over a request under section 41(1.2) or vice versa?
(iv) Is the date of the receive of the application/request in this proceeding determinative of its priority?
- The Minister requests that this matter be dealt with in an expeditious manner and that specifically the question under paragraph 6(1) be dealt with on or before the date of the last-offer vote on October 3, 1994 and that if possible an interim decision of the Board be given on question 6(1) on or before October 3, 1994.
3A hearing was held on September 29, 1994 to receive the parties' submissions on the issues raised by the reference. It appears to the Board, and it appeared to the parties, that the central issue raised by the reference is whether the Labour Relations Act establishes any scheme of priority as between requests made pursuant to sections 40 and 41 of the Act. In our view this question must be answered in the negative. Both requests, regardless of the dates on which they were made or received, must proceed in the normal course.
4As noted in the terms of reference, section 40 of the Act is expressed in mandatory language. Once a request for a final offer vote is made, other than in the construction industry, the Minister "shall ... direct that a vote of the employees to accept or reject the offer be held ...". Likewise, once the prerequisites for the operation of section 41(1)(a) are established, section 41(1) requires that a "first agreement be settled by arbitration". Apart from the limited circumstances set out in section 41(6), neither the Minister nor the Board is accorded any discretion as to the operation of this provision.
5There is also no incompatibility in the operation of the two provisions. A vote in favour of the employer's final offer does not result in a collective agreement. It simply provides the basis upon which, in "the usual case", a binding agreement between the employer and the trade union is to be entered into: Canada Cement Lafarge Ltd., [1980] OLRB Rep. Nov. 1583 at 1598. Whether the circumstances of this case are "usual" may need to be dealt with in the context of a further proceeding, depending upon the outcome of the vote and, perhaps, the union's response.
6On that basis, we answer the questions set out in paragraph 6 of the reference as follows:
- (i) The last-offer vote scheduled for October 3, 1994 should proceed on the usual terms.
(ii) The Minister should proceed under sections 40 and 41 simultaneously.
(iii) The application under section 40 does not take precedence over a request under section 41(1.2), nor vice versa.
(iv) There is no priority as between requests made pursuant to sections 40 and 41 of the Act.
7More extensive reasons may follow.