[1998] OLRB REP. MAY/JUNE 493
0404-98-R Elie Khalife, on his own behalf and on behalf of a group of employees of West-Way Taxi Nepean Ltd., Applicant v. Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Local 1688, Responding Party v. Westway Taxi Nepean Ltd., Intervenor
BEFORE: Christopher J. Albertyn, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.
DECISION OF VICE-CHAIR CHRISTOPHER J. ALBERTYN AND BOARD MEMBER D. A. PATTERSON; June 18, 1998
This is a reconsideration request of a decision dismissing a termination application because it was untimely, having regard to the provisions of subsection 67(2) of the Labour Relations Act, 1995 ("the Act").
The Board dismissed the termination application in a decision on May 25, 1998. At the time of making the decision the Board did not have the benefit of the representations which were made by the applicant in respect of the timeliness of the application. The Board now has those representations.
Collective bargaining between the responding union ("the Union") and West-Way Taxi Nepean Ltd. ("the Employer") reached impasse and the appointment of a conciliation officer was sought, and granted on March 24, 1997. This termination application was filed on April 28, 1998, more than 12 months after the appointment of a conciliation officer. No conciliation board or mediator has been appointed and the Minister has not informed the parties that he does not consider it advisable to appoint a conciliation board.
Subsection 67(2) of the Act reads as follows:
(2) Where notice has been given under section 59 and the Minister has appointed a conciliation officer or a mediator, no application for certification of a bargaining agent of any of the employees in the bargaining units as defined in the collective agreement and no application for a declaration that the trade union that was a party to the collective agreement no longer represents the employees in the bargaining unit as defined in the agreement shall be made after the date when the agreement ceased to operated or the date when the Minister appointed a conciliation officer or a mediator, whichever is later, unless following the appointment of a conciliation officer or a mediator, if no collective agreement has been made,
(a) at least 12 months have elapsed from the date of the appointment of the conciliation officer or a mediator;
(b) a conciliation board or a mediator has been appointed and 30 days have elapsed after the report of the conciliation board or the mediator has been released by the Minister to the parties; or
(c) 30 days have elapsed after the Minister has informed the parties that he or she does not consider it desirable to appoint a conciliation board,
whichever is later.
Only paragraph (a) of what is contemplated in subsection 67(2) has occurred. Paragraphs (b) and (c) are alternatives. Neither has yet occurred. The applicant submits that paragraphs (b) and (c) apply only in instances where the events referred to therein have occurred (i.e. where a conciliation board or mediator has been appointed, or where a no-board report has been released). The applicant suggests that as neither of these events have occurred, neither paragraph (b) or (c) is capable of operation. Therefore, on this argument, only paragraph (a) has relevance and the application satisfies the 12 month requirement of paragraph (a).
The applicant contends that this interpretation stands to reason because it lies in the hands of the Union (and the Employer) to request a no-board report. The applicant suggests that the Act does not intend a trade union to be able to protect itself from decertification indefinitely, simply by failing to request a no-board report. Assuming no conciliation board or mediator will be appointed, the outer limit for the "closed" period is, on this submission, 12 months from date of the appointment of a conciliation officer, plus a further 30 days if a no-board report is issued immediately thereafter. The applicant contends that in the absence of the no-board report, then the outer limit of the closed period is 12 months, which would make the application timely.
The Union takes a different view. It contends that the closed period remains operative until the later of the happening of the events contemplated in paragraphs (a) and (b) or, more likely, in paragraphs (a) and (c).
We are in agreement with the Union's contention. Subsection 67(2) ends with the words, "whichever is later". That means that if (a) has occurred, yet neither (b) nor (c) has occurred, then the provisions of the subsection have not been fulfilled. The closed period remains in operation until the happening of one of the events contemplated in (b) or (c), which, for practical purposes, means that the closed period remains until the no-board report has been issued and a period of 30 days has expired.
Reading subsection 67(2) may give one the impression at first blush that paragraphs (a), (b) and (c) are alternative to each other; that the "or" at the end of paragraph (b) applies also to paragraph (a). That impression would be mistaken. It fails to recognize that the addition of the words "whichever is later" contemplates the happening of two events, not one, and it fails to have regard to the manner in which the conciliation process operates under the Act.
Subsection 67(2) contemplates the happening of two events. Those events are: the appointment by the Minister of a conciliation officer (or mediator) - the provision of paragraph (a); and, one or other of (b) and (c). Paragraph (b) is necessarily alterative to (c) - in (b) the Minister has appointed a conciliation board, in (c) he does not. The addition on the words, "whichever is later" necessarily implies that two different things have happened in some sequence to each other. The events contemplated in paragraphs (b) and (c) cannot both occur. The one is the categorical opposite of the other. If the one occurs, the other does not. Hence, what the subsection contemplates is that (a) will occur, i.e. there will be the appointment of a conciliation officer and 12 months will elapse thereafter, and then (b) or (c) will occur; or (b) or (c) will occur first, and then (a) will occur. Therefore both events, the later of which is relevant for the purposes of determining the (second) open period (the first being the last 2 months of the previous collective agreement), must occur for the open period to revive. In short, the subsection is properly read as if there were the addition of the word "and" after paragraph (a).
To all intents and purposes (given how seldom a conciliation board is appointed), normally a no-board report (i.e. that of paragraph (c)) will be issued before the expiry of 12 months, in which event the 12 months stipulated in (a) will be the trigger for the open period. But in exceptional cases, such as this, when no no-board report has issued, and the event contemplated in (a) has happened, the open period must await the issue of the no no-board report contemplated in (c). As stated, both events are necessary.
This interpretation of the alternative nature of (b) and (c) is borne out by reference to other provisions in the statute. Section 21 reads:
If the conciliation officer is unable to effect a collective agreement within the time allowed under section 20,
(a) the Minister shall forthwith by notice in writing request each of the parties, within five days of the receipt of the notice, to recommend one person to be a member of a conciliation board, and upon the receipt of the recommendations or upon the expiration of the five-day period he or she shall appoint two members who in his or her opinion represent the points of view of the respective parties, and the two members so appointed may, within three days after they are appointed, jointly recommend a third person to be a member and chair of the board, and upon the receipt of the recommendation or upon the expiration of the three-day period, he or she shall appoint a third person to be a member and chair of the board; or
(b) the Minister shall forthwith by notice in writing inform each of the parties that he or she does not consider it advisable to appoint a conciliation board.
That means that, if a conciliation officer appointed to assist the parties with their collective bargaining is unable to effect a collective agreement between them, then the Minister does one of two things: he either appoints a conciliation board or he issues a no-board report. The same is true of section 79(2), which reads:
- (2) Where no collective agreement is in operation, no employee shall strike and no employer shall lock out an employee until the Minister has appointed a conciliation officer or a mediator under this Act and,
(a) seven days have elapsed after the day the Minister has released or is deemed pursuant to subsection 122(2) to have released to the parties the report of a conciliation board or mediator; or
(b) 14 days have elapsed after the day the Minister has released or is deemed pursuant to subsection 122(2) to have released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board.
Lawful industrial action is delayed until the happening of one or other event: the appointment or non-appointment of a conciliation board and the expiry of the stipulated number of days.
Sections 21 and 79(2) support the interpretation given above. Paragraphs (b) and (c) of subsection 67(2) are to be read as alternatives, and paragraph (a) is to be read as additional to one or other of them.
Subsection 67(2) is applicable where there is an established collective bargaining relationship and the bargaining parties are attempting to negotiate a new collective agreement. In other words, there has already been an open period during the last two months of the former collective agreement, when unhappy employees had the opportunity to oust their union. The appointment of a conciliation officer cannot close that open period. In that context it is not surprising that the statute forecloses another opportunity to mount a challenge until government assistance to the bargaining process is formally completed by the event described in (b) or (c). The fact that the Minister has not moved within the times prescribed in sections 20 and 21 is not unusual because bargaining is seldom completed in such short periods. It is also irrelevant to the time periods stipulated in subsection 67(2). That subsection is designed to allow the conciliation process to take its course until it is wholly complete.
The Act provides for a careful balancing of conflicting interests. Part of that balance is that established collective bargaining relationships can be renewed, after an open period during which the union's continued bargaining rights are briefly in jeopardy, through a process of negotiation and, if necessary, conciliation and/or mediation, without the union concerned having to face a displacement or decertification challenge. Another part of the balance is that employees have opportunities to terminate the union's bargaining rights during designated open periods, which are positioned so as to accommodate on-going collective bargaining. The open periods are during the last two months of the expiring collective agreement and after the collective bargaining process is complete, i.e. once the later of the two events contemplated in subsection 67(2) has occurred. (See Teamsters Local 91 [1990] OLRB Rep. Jan. 89 and Connie Steel Products Ltd. [1987] OLRB Rep. Oct. 1225).
In the circumstances the Board will not reconsider its earlier decision.
Board Member Ronson stands by his previous dissenting decision.
DECISION OF BOARD MEMBER J. A. RONSON; June 18, 1998
At a time when the legislature is focusing the Board on the wishes of employees and workplace democracy - this is a decision that doesn't.