Ontario Labour Relations Board
[1996] OLRB REP. JANUARY 23
3381-95-R Tracy McLellan, Jennifer Faulkiner, Sharon Haviland, Mary-Lou Reeves, Maxine Rapai, Donna Dempsey, Applicants v. Ontario Public Service Employees Union, Responding Party
BEFORE: S. Liang, Vice-Chair, and Board Members R. McGuire and K. S. Brennan.
DECISION OF THE BOARD; January 31, 1996
1This is an application for termination of bargaining rights. By decision dated January 5, 1996 [now reported at [1996] OLRB Rep. Jan. 211, the Board requested the parties' submissions, if any, on the issue of the timeliness of this application. Having reviewed the submissions received, the Board finds that this application is untimely, for the reasons given below.
2Although the applicants state that they dispute the facts regarding the appointment of a conciliation officer on December 8, 1995, they provide no reasons why the Board ought not to rely on the document dated December 8, 1995, provided by the union. This letter purports to be from the Director of Labour Management Services, Office of Mediation, Ministry of Labour, appointing a conciliation officer pursuant to his delegated statutory authority. Having regard to the submissions of the parties and the Board's powers under sections 111(2)(e) and 121(2) of the Labour Relations Act, 1995, the Board is satisfied that on December 8, 1995, a conciliation officer was appointed within the meaning of section 67(2) of the Act.
3The applicants state that it would be unfair for the Board to find that the application date in this matter is that recognized by the Board's Rules, namely, the date on which it was received by the Board. Both the Board's Rules of Procedure, in effect since January of 1993, and the Interim Certification and Termination Rules, which apply to certification and termination applications filed after November 10, 1995, provide that the date of filing of a document is the date on which that document is received by the Board, with specific exceptions which do not apply here. The Board has the discretion to relieve against the strict application of its rules, but only does so in exceptional circumstances. As much as the applicants feel that the application of the Board's rules to them is unfair, it would also be unfair for the Board to apply its rules unevenly. Inconsistent application of rules can also result in unfairness. We note that on the application form filled out by the applicants, there is a specific reference to the Board's rules, and to the advisability of consulting these rules before filing an application.
4In sum, we find no compelling reason here to waive the application of the Board's rules to vary the filing date of this application.
5On the submissions, it is clear that the applicants' main concern is less the effect of the Board's rules, than the effect of the appointment of a conciliation officer on the timeliness of this application. They allege that the union's motivation in seeking conciliation was precisely to thwart the making of this application. They further allege that this constitutes bargaining in bad faith or other unfair labour practices. The applicants also question whether the appointment of a conciliation officer should have been made. On this last issue, the Board cannot review the decision to appoint a conciliation officer, since this was not a decision of the Board. The Board can only take account of the fact that it has been done, and apply the provisions of the Act accordingly. On the other issues, the Board has stated in the past that it is neither improper nor unlawful for a union to seek to order its affairs so as to take advantage of the provisions of the Act relating to when termination applications can be filed: see The T. Eaton Company Limited, [1985] OLRB Rep. Aug. 1309 at paragraph 32. Just as the timing of a termination application may be governed by lawful strategic considerations, so may the timing of a request for conciliation.
6In fact, in many cases, the appointment of a conciliation officer is sought much sooner than it was here. It appears from the submissions before us that the parties had been bargaining for about a year and a half without a collective agreement, before the request for conciliation was made. During that period of time, of course, it was entirely open to the applicants to make an application for termination of bargaining rights, which would have been timely. Having made an untimely application, however, the applicants will now have to defer their request to terminate bargaining rights until the next open period provided for under the Act.
7For the above reasons, the Board finds that this application is untimely, and it is hereby dismissed.