Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 880 v. Sterling Marine Fuels, 1997 CanLII 15491

[1997] OLRB REP. MARCH/APRIL 280

0063-97-R Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 880, Applicant v. Sterling Marine Fuels, A Division of McAsphalt Industries Ltd., Responding Party v. International Union of Operating Engineers, Local 793, Intervenor

BEFORE: S. Liang, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.

DECISION OF THE BOARD; April 9, 1997

1This is an application for certification. The Board finds it appropriate to defer the holding of a representation vote pending submissions on certain issues.

2In the response filed by the employer and the intervention filed by the incumbent union, two significant issues are raised.

3First, it is the position of the employer and the incumbent union that this application is untimely, having regard to the provisions of section 7(6) of the Labour Relations Act, 1995, which states:

(6) Where a collective agreement referred to in subsection (4) or (5) provides that it will continue to operate for a further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, 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 during the further term or successive terms only during the last two months of each year that it so continues to operate, or after the commencement of the last two months of its operation, as the case may be.

4The relevant provisions of the agreement between the employer and incumbent union are attached to the response and state:

This Collective Agreement shall come into effect on September 8th. 1994 and shall remain in effect until February 28th, 1997, and shall continue in force from year to year thereafter unless either party shall furnish the other with notice of termination of or proposed revision of this Collective Agreement not more than ninety (90) days before February 28. 1997, or in a like period in any year thereafter.

5The employer and the incumbent union are agreed that no party served notice of termination or proposed revision of the agreement in accordance with that article. Assuming this to be correct, the agreement thus appears to remain in force for another year. This application, having been made on April 4, 1997, would thus appear to be untimely.

6Having regard to the foregoing, the applicant is directed to provide submissions indicating whether there is any reason why the Board should not accept the facts as set out by the employer and incumbent union to be true and on the basis of these facts, find this application to be untimely.

7Second, the employer submits that its labour relations are governed by the Canada Labour Code and not the Labour Relations Act, 1995, and submits a copy of the certificate issued by the Canada Labour Relations Board to the incumbent union. The employer submits, among other things, that the Board is without jurisdiction to entertain this application, including to conduct a vote.

8The Board directs the applicant and the incumbent union to provide their submissions on the constitutional matter raised by the employer, including their submissions on how the Board should deal with this application given this issue.

9Any written submissions must be received by the Board and by the other parties by no later than 5:00 p.m. on Friday, April 11, 1997.