[1999] OLRB REP. JULY/AUGUST 581
0535-99-R ABC Taxi (Brockville) Ltd. and Safedrive Inc., carrying on business as City Cab, Applicant v. Retail Wholesale Canada, Canadian Service Sector, Division of the United Steelworkers of America, Local 1688, Responding Party
BEFORE: Caroline Rowan, Vice-Chair
APPEARANCES: Mohan Gill for ABC Taxi (Brockville) Ltd. and Safedrive Inc., carrying on business as City Cab; Mark Rowlinson, Mary Leemiek and Mohamad Alsadi for the responding party; Robert Countryman and Brent Guilboard for the group of employees.
DECISION OF THE BOARD; August 4, 1999
This is an application pursuant to section 65 of the Labour Relations Act, 1995 (the "Act") for a declaration that the responding party, Retail Wholesale Canada, Canadian Service Sector, Division of the United Steelworkers of America, Local 1688 (the "union") no longer represents the employees in the bargaining unit for which it is the bargaining agent. The application was brought by the employer, ABC Taxi (Brockville) Ltd. and Safedrive Inc., carrying on business as City Cab (hereinafter collectively referred to as the "employer") on May 5, 1999. The employer submits that the Board should exercise its discretion to terminate the union's bargaining rights because of the union's failure to bargain a renewal collective agreement. The most recent collective agreement expired on November 29, 1997.
At the outset of the hearing, the union raised a preliminary motion to dismiss the application on the ground that it is untimely. This decision deals with the Board's disposition of that motion.
As only the union was represented by counsel at the hearing, I indicated at the outset that although there is no requirement that persons appearing before the Board retain legal counsel, persons appearing on their own must bear any risks involved in doing so. I indicated that the Board is an adjudicative tribunal, whose role is to hear and decide cases, and therefore cannot advise unrepresented parties as to how they should proceed.
I then indicated that the Board would first deal with the union's preliminary motion. Before hearing the union's submissions, I advised Mr. Gill, appearing on behalf of the employer, to listen carefully to the facts stipulated by the union for the purposes of this motion as I would be asking him to advise the Board of any facts in dispute. Following union counsel's presentation, Mr. Gill indicated that the employer did not dispute the chronology of events stipulated by the union. The facts relevant to the preliminary motion are set forth below.
The Facts
The union is the certified bargaining agent for a unit of taxi drivers of the employer in Brockville. The certificate issued to the union on March 6, 1987. Since that time, the parties have entered into numerous collective agreements, the most recent of which was signed on September 28, 1996 effective from November 29, 1994 to November 29, 1997.
By letter dated September 2, 1997, the union gave the employer notice to bargain a renewal collective agreement pursuant to section 59 of the Act. Shortly thereafter, on October 20, 1997, the union requested the appointment of a conciliation officer. By letter dated October 25, 1998 and a subsequent letter dated October 31, 1998, Mr. Gill, on behalf of the employer, wrote to the Ministry of Labour objecting to the proposed appointment of a conciliation officer. His objection was, generally speaking, based on his claim that the taxi drivers in the bargaining unit are independent contractors and not employees.
Notwithstanding this objection, a conciliation officer was appointed on November 3, 1997. Although there was a dispute between the parties as to whether or not the union had ever requested that such appointment be cancelled, it is common ground that the conciliation officer remains appointed as of the date of the hearing in this matter.
To date, no conciliation board or mediator has been appointed and the Minister has not informed the parties that he or she does not consider it desirable to appoint a conciliation board.
As of May 5, 1999, the date that the instant application was filed, the parties had not commenced to bargain and no collective bargaining proposals had yet been exchanged.
The union explained that its delay in bargaining was the result of the employer's position that the taxi drivers in the bargaining unit are independent contractors and not employees within the meaning of the Act. The employer took this position immediately following the union's request that a conciliation officer be appointed. On November 4, 1997, the day after the appointment of the conciliation officer, the employer filed an application with the Board pursuant to section 114(2) of the Act alleging that all of the taxi drivers in the bargaining unit are independent contractors. This matter was heard by the Board on May 18, 1998 and the parties await the Board's decision on this issue.
As a result of the position taken by the employer, the union asserts that it made a decision to delay bargaining until it had a clear understanding from the Board as to the status of the taxi drivers in the bargaining unit. In addition, the union states that it believed that the employer had no appetite to bargain in any event.
During the period from September, 1997 to May 5, 1999, the date that this application was filed, the union, however, continued to file grievances on behalf of members of the bargaining unit and continued to process them through the grievance procedure.
The union also called a meeting of the membership on February 1, 1999 to discuss proposals to amend the collective agreement. At this time, proposals to amend the collective agreement were reviewed. No bargaining for a renewal agreement has, however, yet taken place.
The union's preliminary motion
- The union's argument in support of its preliminary motion that the Board should dismiss the application is three-fold. The union argues that:
the application is untimely having regard to the language of subsection 65(2) of the Act;
in the alternative, the application is untimely under subsection 67(2) of the Act;
in the further alternative, even if the Board finds the application to be timely, there is no basis on the facts of this case which would warrant the Board to exercise its discretion under subsection 65(2) to terminate bargaining rights or to order a representation vote. In this regard, the union argues that its conduct in continuing to service the bargaining unit indicates that it did not, nor did it ever intended to, abandon its bargaining rights.
Decision
The employer's application was brought pursuant to the provisions of subsection 65(2) of the Act. It is the employer's position that although the union gave notice to bargain pursuant to section 59 of the Act, it failed to commence to bargain within 60 days from the giving of such notice. The employer takes the position that subsection 65(2) of the Act applies in circumstances such as these and therefore it is entitled to bring a termination application at this time. With respect to the discretion given to the Board under subsection 65(2), the employer submits that the union's failure to bargain a renewal agreement during a lengthy period of over a year and a half since the expiry of the most recent collective agreement warrants the dismissal of the union's bargaining rights or, alternatively, an order for a representation vote. The employer further takes the position that section 67 dealing with timeliness of representation applications does not apply to applications brought under subsection 65(2) of the Act.
Having considered the submissions of the parties, the Board finds that the timelines specified under subsection 67(2) of the Act do apply to the instant application brought under subsection 65(2). The Board further finds that the application is untimely pursuant to subsection 67(2) of the Act. The Board's reasons for this decision follow.
Subsection 65(2) allows an employer or any of the employees in the bargaining unit to bring a termination application for the failure of the union to bargain. Subsection 65(1) deals with circumstances in which no notice to bargain has been given. Subsection 65(2) deals with situations such as the one before me where notice to bargain has been given and a conciliation officer has been appointed. Section 65 reads as follows:
(1) If a trade union fails to give the employer notice under section 16 within 60 days following certification or if it fails to give notice under section 59 and no such notice is given by the employer, the Board may, upon the application of the employer or of any of the employees in the bargaining unit, and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit.
(2) Where a trade union that has given notice under section 16 or section 59 or that has received notice under section 59 fails to commence to bargain within 60 days from the giving of the notice or, after having commenced to bargain but before the Minister has appointed a conciliation officer or mediator, allows a period of 60 days to elapse during which it has not sought to bargain, the Board may, upon the application of the employer or of any of the employees in the bargaining unit and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit.
Section 67 of the Act is entitled "Timeliness of Representation Applications" and generally prohibits the bringing of both certification or termination applications until certain specified time periods have elapsed. Subsection 67(1) deals with first contract situations whereas subsection 67(2) prescribes timelines in the context of bargaining for a renewal collective agreement. Section 67 reads in full as follows:
(1) Subject to subsection (3), where a trade union has not made a collective agreement within one year after its certification and the Minister has appointed a conciliation officer or a mediator under this Act, no application for certification of a bargaining agent of, or for a declaration that a trade union no longer represents, the employees in the bargaining unit determined in the certificate shall be made until,
(a) 30 days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator;
(b) 30 days have elapsed after the Minister has released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board; or
(c) six months have elapsed after the Minister has released to the parties a notice of a report of the conciliation officer that the differences between the parties concerning the terms of a collective agreement have been settled,
as the case may be.
(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. (3) Where a trade union has given notice under section 16 and the employees in the bargaining unit on whose behalf the trade union was certified as bargaining agent thereafter engage in a lawful strike or the employer lawfully locks out the employees, no application for certification of a bargaining agent of, or for a declaration that the trade union no longer represents, the employees in the bargaining unit determined in the certificate shall be made,
(a) until six months have elapsed after the strike or lock-out commenced; or
(b) until seven months have elapsed after the Minister has released to the parties the report of the conciliation board or mediator or a notice that the Minister does not consider it advisable to appoint a conciliation board,
whichever occurs first.
(4) Subsections (1) and (3) apply with necessary modifications to an application made under subsection 7(3).
Subsection 67(2) applies in circumstances such as the one before me where notice has been given under section 59 of the Act and the Minister has appointed a conciliation officer. In these circumstances, subsection 67(2) states that "... 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, ...".
In this situation, the agreement ceased to operate on November 29, 1997 and the Minister appointed a conciliation officer on November 3, 1997. The application for a declaration that the union no longer represents the employees in the bargaining unit defined in the collective agreement was brought on May 5, 1999, which is after the later of these two dates. According to subsection 67(2), such an application cannot be made following the appointment of a conciliation officer or mediator, if no collective agreement has been made (as is the case in our situation) until certain preconditions have been met. These preconditions are specified in subparagraphs (a), (b) or (c) of subsection 67(2).
On the facts of this situation, only the precondition set out in subparagraph (a) has been met; that is, that at least 12 months have elapsed from the date of the appointment of a conciliation officer. The conciliation officer was appointment on November 3, 1997 and the application was made over 12 months later, on May 5, 1999. In this case, however, a conciliation board or mediator has not been appointed and a "no board" report has not been issued; that is, the Minister has not informed the parties that he or she does not consider it desirable to appoint a conciliation board. As such neither of the preconditions set out in subparagraphs (b) or (c) have been met. In these circumstances, the provisions of the subsection have not been fulfilled as the closed period remains in operation until the happening of one of the events contemplated in subparagraphs (b) or (c).
The situation is similar to that before the Board in Westway Taxi Nepean Ltd. [1998] OLRB Rep. May/June 493. In that case, the Board considered the timelines specified in subsection 67(2) in the context of a termination application. As in our case, only the events contemplated in subparagraph (a) had occurred. The termination application was consequently found to be untimely. The Board reasoned as follows:
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 alternative 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....
The policy rationale for the closed period prescribed by subsection 67(2) is explained by the Board in Westway Taxi Nepean Ltd., supra, as follows:
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.
In the context of bargaining for a renewal agreement, the union faces two possible open periods. The first is during the last two months of the collective agreement. A closed period is then prescribed by subsection 67(2) of the Act during which time bargaining can generally take place without the union being concerned about its bargaining rights being in jeopardy by virtue of a termination or displacement application. According to subsection 67(2), that closed period then opens up again at the conclusion of the bargaining process; that is, once the preconditions set out in subparagraphs (a) and (b) or more likely subparagraphs (a) and (c) have been met. As these preconditions have not been met on the facts of this case, the period remains closed and as such "no application for a declaration that a trade union no longer represents the employees in the bargaining unit" can be made at this time under the terms of the Act.
For all of the foregoing reasons, the Board finds that the application is untimely under subsection 67(2) of the Act. The application is accordingly hereby dismissed. Having regard to the Board's decision in this regard, it is unnecessary to consider the union's alternative arguments.