[1997] OLRB REP. MAY/JUNE 463

0171-97-R; 1838-96-FC David Pentland, Applicant v. Labourers' International Union of North America, Local 1059 Affiliated with A.F. of L. - C.I.O. - C.L.C., O.F.L., Responding Party v. Ingersoll Plastics Inc., Intervenor; Labourers' International Union of North America, Local 1059, Applicant v. Ingersoll Plastics Inc., Responding Party

BEFORE: Laura Trachuk, Vice-Chair, and Board Members S. C. Laing and D. A. Patterson.

DECISION OF VICE-CHAIR LAURA TRACHUK AND BOARD MEMBER D. A. PATTERSON; June 25, 1997

1. Board File No. 1838-96-FC is an application that a first contract be settled by arbitration. Board File No. 0171-97-R is an application for termination of bargaining rights. In a decision dated May 1, 1997 the Board directed the parties to file submissions on the following two questions: "(1) in what order the Board ought to hear and decide the two applications; and (2) having regard to this determination, whether and if so, when, a vote on the termination application, ought to be held (and [presumably] whether or not the ballot box ought to be sealed)". Mr. Pentland and Ingersoll Plastics Limited (referred to as the "company") both submitted that the termination application should be considered first and that if the employees indicated they no longer wished to be represented by the trade union the first contract application should be dismissed. The applicant in File No. 1838-96-FC (referred to as the union) submitted that that application should be considered first. None of the parties requested that a representation vote be held even if the Board decided to consider the first contract application first.

2. In a decision dated May 8, 1997 the majority (Board Member Laing dissenting) held that Board File No. 017 l-97-R will not be considered, and a representation vote will not be held, until the application in Board File No. 1838-96-FC has been decided. The following are the reasons for that decision.

3. The relevant provisions of the Labour Relations Act provide as follows:

4. (1) Where the parties are unable to effect a first collective agreement and the Minister has released a notice that it is not considered advisable to appoint a conciliation board or the Minister has released the report of a conciliation board, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration.

(2) The Board shall consider and make its decision on an application under subsection (1) within 30 days of receiving the application and it shall direct the settlement of a first collective agreement by arbitration where, irrespective of whether section 17 has been contravened, it appears to the Board that the process of collective bargaining has been unsuccessful because of,

(a) the refusal of the employer to recognize the bargaining authority of the trade union;

(b) the uncompromising nature of any bargaining position adopted by the respondent without reasonable justification;

(c) the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or

(d) any other reason the Board considers relevant.

3. Where a direction is given under subsection (2), the first collective agreement between the parties shall be settled by a board of arbitration unless within seven days of the giving of the direction the parties notify the Board that they have agreed that the Board arbitrate the settlement.

4. Where the parties give notice to the Board of their agreement that the Board arbitrate the settlement of the first collective agreement, the Board.

(a) shall appoint a date for and commence a hearing within 21 days of the giving of the notice to the Board; and

(b) shall determine all matters in dispute and release its decision within 45 days of the commencement of the hearing.

(11) The date of the first hearing of a board of arbitration appointed under this section shall not be later than 21 days after the appointment of the chair.

(12) A board of arbitration appointed under this section shall determine all matters in dispute and release its decision within 45 days of the commencement of its hearing of the matter.

(23) Despite subsection (2). where an application under subsection (1) has been filed with the Board and a final decision on the application has not been issued by it and there has also been filed with the Board, either or both,

(a) an application for a declaration that the trade union no longer represents the employees in the bargaining unit; and

(b) an application for certification by another trade union as bargaining agent for employees in the bargaining unit,

the Board shall consider the applications in the order that it considers appropriate and if it grants one of the applications, it shall dismiss any other application described in this section that remains unconsidered.

(24) An application for a declaration that a trade union no longer represents the employees in the bargaining unit filed with the Board after the Board has given a direction under subsection (2) is of no effect unless it is brought after the first collective agreement is settled and unless it is brought in accordance with subsection 63(2).

(25) An application for certification by another trade union as bargaining agent for employees in the bargaining unit filed with the Board after the Board has given a direction under subsection (2) is of no effect unless it is brought after the first collective agreement is settled and unless it is brought in accordance with subsections 7(4), (5) and (6).

63. (1) If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may, subject to section 67, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.

(3) The applicant shall deliver a copy of the application to the employer and the trade union by such time as is required under the rules made by the Board and, if there is no rule, not later than the day on which the application is filed with the Board.

(4) The application filed with the Board shall be accompanied by a list of the names of the employees in the bargaining unit who have expressed a wish not to be represented by the trade union and evidence of the wishes of those employees, but the applicant shall not give this information to the employer or trade union.

(5) If the Board determines that 40 per cent or more of the employees in the bargaining unit appear to have expressed a wish not to be represented by the trade union at the time the application was filed, the Board shall direct that a representation vote be taken among the employees in the bargaining unit.

(6) The number of employees in the bargaining unit who appear to have expressed a wish not to be represented by the trade union shall be determined with reference only to the information provided in the application and the accompanying information provided under subsection (4).

(7) The Board may consider such information as it considers appropriate to determine the number of employees in the bargaining unit.

(8) The Board shall not hold a hearing when making a decision under subsection (5).

(9) Unless the Board directs otherwise, the representation vote shall be held within five days (excluding Saturdays, Sundays and holidays) after the day on which the application is filed with the Board.

4. Therefore the Act contemplates that a party involved in bargaining a first collective agreement may apply to the Board for a direction that the agreement be settled by arbitration if the process of collective bargaining has been unsuccessful for one of the reasons listed in section 43(2). The Act contemplates that such an application will be dealt with swiftly, and that if the Board directs the settlement of a first contract by arbitration any application for termination of bargaining rights or for displacement by another bargaining agent is of no force and effect. However, the Act also contemplates in section 63 that if a trade union does not make a collective agreement with the employer within one year after certification an employee may apply to the Board for a declaration that the trade union no longer holds bargaining rights. A representation vote is to be held within five days of receiving such an application unless the Board directs otherwise. Section 43(23) leaves it to the Board's discretion as to which application it will consider first when faced with applications under both sections. The Board must decide which application to consider first and if it grants one, the other application shall be dismissed.

5. How should the Board's discretion under section 43(23) be exercised in the circumstances of this case? The union was certified on April 10, 1996. The first contract application was filed on September 25, 1996 and a hearing was scheduled to commence within 30 days as directed by the statute. The parties agreed to adjourn the application sine die prior to the hearing. It appears from the subsequent pleadings that the parties' intention was to continue to attempt to reach a collective agreement through collective bargaining. On March 4, 1997 the union requested that a hearing of the application be scheduled. The union also filed amended particulars which refer to events occurring subsequent to the filing of the application. As the original hearing dates had been adjourned by the parties the Board did not consider that it was required to schedule a hearing within 30 days and scheduled a hearing for April 30, May 1 and 2. The application for termination of bargaining rights was filed on April 14, 1997. In a decision dated April 18, 1997 the Board ordered that the two applications be heard together starting April 30 for the purposes of determining how the two applications would be dealt with. However, the hearing dates of April 30 and May I and 2 were adjourned because counsel for the company was not available and because Mr. Pentland and his counsel had received insufficient notice of the hearing and were also unavailable.

6. The union acted expeditiously in filing its first contract application and could reasonably have expected to have had it determined, or at least to have commenced a hearing, before an application for termination of bargaining rights would be timely. It appears from the correspondence that the union may not have been aware that it was giving up its right to have the matter heard within 30 days when it agreed to adjourn the original hearing dates sine die. It did ask to have the matter brought back on in a timely manner. The Act contemplates that one of the applications in such circumstances will be considered before the other. In the normal course, applications with competing claims are determined in the order in which they are filed. In these circumstances there is no reason to depart from that normal expectation, indeed to do so would be prejudicial to the union which has made its claim to have a direction that a first contract be settled by arbitration in a timely way. Furthermore, if the application for first contract is successful, it is exactly because the statutory requirements under section 43(2) have been met. If those requirements have been met, they have also given rise to the circumstances which make the termination application timely. It is therefore most appropriate for the Board to consider the application that a first contract be settled by arbitration before the termination application.

7. In prior decisions the Board's approach has been to consider the first contract application first when the hearing has commenced prior to the filing of the termination application. In Fort William Clinic, [1996] OLRB Rep. Nov./Dec. 942, the Board had commenced the hearing of the first contract application when the application for termination of bargaining rights was filed and ruled that it would not consider the latter application until the former had been determined. The Board also declined to order a representation vote or to decide whether a hearing should be held on the basis of the union's allegation of wrongdoing prior to holding a vote. The Board in that decision also noted that section 43(23) is almost identical to section 40a(22) as it read in the Act prior to 1993. Under that section the Board took the same approach. In Northfield Metal Products Ltd., [1990] OLRB. Rep. March 302, the Board decided to consider an application for first contract before an application for termination of bargaining rights when the application for first contract had been filed first, even though the parties there, as here, had agreed to adjourn the early hearing dates sine die. (See also Co-Fo Concrete Forming Construction Limited, [1987] OLRB Rep. June 828 and Venture Industries Canada Ltd., [1990] OLRB Rep. May 625.)

8. In other circumstances where a union is objecting to the termination application under the present section 63(16), or under the Board's previous jurisdiction with respect to petitions and it therefore appeared that the same evidence would have to be called in both the first contract and the termination application the Board has sometimes heard both applications together and then decided which one to consider first. If it decides that a direction to settle a first contract by arbitration should be ordered, it dismisses the termination application. (See Knob Hill Farms Limited, [1991] OLRB Rep. April 521,)

9. In the majority's view, this is more like the cases in which the first contract hearing has already commenced when the termination of bargaining rights application is received. In this case the union is not objecting to the application for termination of bargaining rights under section 63(16), so there is no possibility that the same evidence might have to be heard twice, On the other hand, this first contract application was received long before the termination application and the parties could reasonably have expected that the hearing would have been decided or at least commenced, given the emphasis in the Act on expedition in these cases. Although the parties had not yet spent the resources involved in calling witnesses to testify they are expecting a resolution of the first contract application. It makes good labour relations sense in these circumstances to consider the first contract application before the application for termination of bargaining rights.

10. As noted above, none of the parties requested that a representation vote be held even if the Board decided to consider the first contract application first and no submissions were made with respect to that issue.

11. For all of the above reasons, the majority directed that the first contract application in Board File No. 1838-96-FC be considered before the application for termination of bargaining rights in Board File No. 017l-97-R and that no representation vote should beheld at this time.

DECISION OF BOARD MEMBERS. C. LAING; June 25, 1997

1. While the Board is charged with determining (under section 43(23)) which application it will consider first in these circumstances, it is by no means precluded from taking steps to ensure that its determination does not interfere with, or is not at the expense of, other rights which are of equal import - the right to bring an application for a declaration that the trade union no longer represents the employees in the bargaining unit.

2. In the situation before the Board, while I acknowledge that the first contract application predates the termination application, I do not agree that it in essence disposes of the timely termination application. Accordingly, I would find it appropriate to order the holding of a representation vote and seal the ballot box pending a determination of the first contract application.