Ontario Secondary School Teachers' Federation v. Niagara Catholic District School Board
[1998] OLRB REP. MARCH/APRIL 267
4410-97-R Ontario Secondary School Teachers' Federation, Applicant v. Niagara Catholic District School Board, Responding Party v. Canadian Union of Public Employees, Intervenor
BEFORE: Sharon C. Laing, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.
DECISION OF THE BOARD; March 6, 1998
1This is an application for certification filed with the Board on February 18, 1998 on behalf of the Ontario Secondary School Teachers' Federation.
2The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995 (the "Act").
3On February 6, 1998, the Board received from the Niagara Catholic District School Board, a request for an order determining the number and description of bargaining units appropriate for operation pursuant to section 22 of the Public Sector Labour Relations Transition Act, 1997 ("Bill 136").
4The Canadian Union of Public Employees, the intervenor in this matter takes the position that pursuant to section 28(2) of Bill 136, the application for certification is untimely as it has been filed during the period beginning ten days after the order is requested and before the order is made. The intervenor seeks the dismissal of the application for certification on this basis.
5The applicant, in its reply, submits that the ten days referred to in section 28(2) of Bill 136, ought to be interpreted by the Board as "working" days. The Ontario Secondary School Teachers' Federation urges the Board to continue with its well-established practice of excluding Saturdays, Sundays, and holidays in the computation of time for its own purposes. In support of its position the applicant relies on the Board's Rules of Procedure in respect of the Act and the Interim Rules under Bill 136.
6Section 28(2) of Bill 136 provides as follows:
28.(2) During the period beginning 10 days after the order is requested and ending when the order is made, no person may apply for certification of a bargaining agent to represent employees of the successor employer svho are not members of a bargaining unit when the order is requested.
7What Bill 136 does not provide is a definition for the term "day". The comments of the Board in respect of the ninety day period under subsection 10(12) of the Hospital Labour Disputes Arbitration Act are helpful in this regard. In The Corporation of the City of St. Thomas [1997] OLRB Rep. May/June 373 the Board observed the following:
The parties also differed in their views as to how to calculate the different time periods should we find that November 26, 1996 was the "date the board of arbitration gives its decision". Although not now necessary to address in the circumstances of this case, again, a few comments may provide some guidance. The issue in respect of the 90 day period under subsection 10.412) of the HLDAA was whether it was 'calendar" days or "working" days. Local 220 relied on the recent changes to the certification provisions in the Act, noting that votes are held within five working days. not calendar days. However, subsection 8(5) of the Act makes specific reference to the exclusion of Saturdays, Sundays, and holidays for purposes of that calculation and is not a useful guide. In the absence of any qualification limiting the period to working days, we prefer to give the words their normal meaning, that is, the period is one of 90 (calendar) days.
We are of the view that under section 7(4) of the Act (and similarly under the termination provisions) the reference to the "last two months" is not usefully determined by counting back on the basis of a varying number of days depending on the months in issue. Rather, it is a calculation going back 'two months", that is. where agreements commonly expire at the end of a month (December 31) the last two months commence on the first day of the second last month (November 1). If the agreement expires other than at the end of the month, for example on November 14. the last two months in this example would commence on September 15. The only potential anomaly created by this method arises where an agreement expires on May 29 or 30 because of a short February.
8Although the Board has, in its various Rules, defined a period of time as excluding Saturdays, Sundays and statutory holidays, it has done so only with respect to its Rules. Where there is no statutory qualification limiting the period to "working" days (see for example section 7(14) and 8(5) of the Act) the Board is inclined to give the words their normal meaning, that is, the period is one of ten "calendar" days.
9This application having been filed beyond the ten day period following the request for an order pursuant to section 22 of Bill 136 and before the Board has issued such an order, would therefore appear to be untimely.
10Having regard to the foregoing, this application is dismissed as untimely.