[1997] OLRB REP. MARCH/APRIL 296
3759-96-R Canadian Health Care Workers (C.H.C.W.), Applicant v. Trinity Village Care Center, Responding Party v. London & District Service Workers' Union, Local 220, S.E.I.U., A.F.L., C. I.O., C.L.C., Intervenor
BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.
DECISION OF THE BOARD; March 11, 1997
1This is the continuation of an application for certification. By decision dated February 19, 1997, a different panel of the Board indicated "that the application may well be untimely". Accordingly, the Board directed the parties to file submissions on this issue. Those submissions have now been received.
2The application for certification was filed on February 14, 1997. The most recent collective agreement between the responding party and the intervenor expired on March 31, 1995. An application for conciliation was made on July 28, 1995. A conciliation officer was subsequently appointed. On September 22, 1995, the Minister of Labour informed the parties that the conciliation officer had reported that the parties had been unable to effect a collective agreement. There is no assertion that any collective agreement was subsequently entered into. Indeed, it appears that the parties are now in the process of constituting an interest arbitration panel.
3The responding party and intervenor are subject to the provisions of The Hospital Labour Disputes Arbitration Act. Section 12(2) of the Act states:
12(2) Despite section 67 of the Labour Relations Act, 1995 where notice has been given under section 59 of the Act by or to a trade union that is the bargaining agent for a bargaining unit of employees of a hospital to or by the employer of such employees and the Minister has appointed a conciliation officer, an application for certification of a bargaining agent of any of the employees of the hospital in the bargaining unit defined in the collective agreement or an application for a declaration that the trade union that was a party to the collective agreement no longer represents the employees in the bargaining unit defined in the agreement shall not be made after the day upon which the agreement ceased to operate or the day upon which the Minister appointed a conciliation officer, whichever is later, except in accordance with section 7 or subsection 63(2) of the Labour Relations Act. 1995.
4Section 7(4) of the Labour Relations Act, 1995 states:
7(4) Where a collective agreement is for a term of not more than three years, a trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the last two months of its operation.
The effect of these provisions is to provide a minimum two month "open period" immediately prior to the expiry of the collective agreement. However, that period closes either upon the date that the agreement expires or when a conciliation officer is appointed, whichever comes later. In this case, the agreement expired in March 1995 and a conciliation officer was appointed in July or August, 1995. As no subsequent agreement has been entered into, the application is untimely and is, therefore, dismissed.