[1999] OLRB REP. NOVEMBER/DECEMBER 966
2826-99-R Canada Taxi Union, Applicant v. Blue Line Taxi Co. Limited, Responding Party v. Ontario Taxi Union CAW Local 1688 of National Automobile, Aerospace, Transportation and General Workers' Union of Canada (CAW-Canada), Intervenor
BEFORE: Brian McLean, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.
DECISION OF THE BOARD; December 22, 1999
This is an application for certification.
The intervenor in this application, the incumbent union, Ontario Taxi Union CAW Local 1688 of National Automobile, Aerospace, Transportation and General Workers' Union of Canada (CAW-Canada) ("Local 1688"), has raised an issue with respect to the timeliness of this application. By endorsement dated December 17, 1999 the Board deferred the holding of a representation vote in this application so that it could receive submissions on the timeliness issue, which have now been filed.
The background facts are not substantially in dispute.
The intervenor is the bargaining agent for the employees of the employer. It has represented these employees for many years. A collective agreement between the parties expired on June 8, 1998. Local 1688 gave notice to bargain on April 1, 1998. A conciliation officer was appointed on April 22, 1998. Bargaining continued over a lengthy period of time.
The applicant asserts that the parties agreed to request of the conciliation officer assigned to their case that the Minister issue a no-Board report" on November 12, 1999. The applicant also asserts that the parties were advised by the conciliation officer that the parties' request would be granted and that a "no-Board report" would be issued on November 12, 1999. Local 1688 disputes these facts.
In fact, by letter dated November 12, 1999 the Director advised the parties that he did "not consider it advisable to appoint a conciliation board". There is no dispute that the notice was mailed. There is also no dispute that both the employer and the union actually received the letter on November 15, 1999.
Collective bargaining between the parties continued and was successful. A memorandum of agreement was reached on November 29, 1999. The employer group ratified the memorandum of agreement on December 2, 1999. The bargaining unit employees ratified it on December 15, 1999.
This application was filed on December 14, 1999.
The following statutory provisions are relevant:
If the conciliation officer is unable to effect a collective agreement within the time allowed under section 20,
(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
67.(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.
79.(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,
(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 be or she does not consider it advisable to appoint a conciliation board.
122.(2) A decision, determination, report, interim order, order, direction, declaration or ruling of the Board, a notice from the Minister that he or she does not consider it advisable to appoint a conciliation board, a notice from the Minister of a report of a conciliation board or of a mediator, or a decision of an arbitrator or of an arbitration board,
(a) if sent by mall and addressed to the person, employers' organization, trade union or council of trade unions concerned at his, her or its last-known address, shall be deemed to have been released on the second day after the day on which it was so mailed; or
(b) if delivered to a person, employers' organization, trade union or council of trade unions concerned at his, her or its last-known address, shall be deemed to have been released on the day next after the day on which it was so delivered.
The issue in this case is what does the word "informed" mean in section 67(2)(c) of the Labour Relations Act, 1995 ("the Act"). Or put another way, on what date can it be said that the Minister "informed" the parties that he did not consider it desirable to appoint a conciliation board. If more than 30 days have elapsed after the Minister "informed" the parties of his decision prior to the date of this application, then this application is untimely under section 67(2) of the Act.
The applicant asserts that the date on which the parties are informed of the Ministry's decision is the date on the Minister's letter. The applicant asserts that is particularly true under the facts of this case, where the parties had agreed, and the conciliation officer confirmed, that a "no-board" would issue on November 12, 1999.
Local 1688 argues that the date on which the Minister informed the parties is the date on which they actually received the "no-board" letter. Alternatively, Local 1688 argues that the date the Minister informed the parties is governed by section 122(2) of the Act, which deems a "no-board" to be released two days after it is mailed, and therefore the parties are informed two days after the notice is mailed. The parties cannot be informed of the Minister's decision until after it has been released.
We have carefully reviewed all of the submissions filed by the parties in this matter. We have also reviewed all of the cases referred to in these submissions. We are of the view that none of the cases cited by the parties are of any particular assistance.
We can think of no policy reason for the legislature to have used the word "informed" in section 67(2)(c) when it uses the word "released" in every other instance of like circumstance in the Act. There is no reason why an open period for an application should commence 32 days after a "no-board report" in the instance of a failure to make a first collective agreement and 30 days after a "no-board report" in the case of a renewal collective agreement. It appears possible that there is a drafting error in section 67(2)(c) or alternatively, that the word "informed" means virtually the same thing as "released".
Assuming there is no drafting error in section 67(2), we are inclined to the view that "informed" means actually received by the parties rather than the date stamped on the "no-Board report". Under the clear meaning of the word "informed", the person to whom the information is directed must actually receive such information. A party can only be informed when it has received the information conveyed by the Minister.
Under the circumstances, we do not have to decide whether "informed" means the same as "released" or whether it means "actually received", because we are satisfied that "informed" does not mean, as the applicant asserts, the date set out on the "no-board".
We are not persuaded that the facts alleged in this case, even if accepted as true, alter our conclusion. Even if Local 1688 and the employer requested a "no-board" on November 12, 1999 and were assured by the conciliation officer that would in fact occur, it would not make any difference to our determination. Firstly, the conciliation officer is not in a position to give out "no-board reports" as he is neither the Minister or his delegate. Secondly, such advice cannot be taken as a guarantee that a "no-board report" will issue on that date. The parties are only informed when they actually received the notice.
In all of the circumstances, therefore, we find that this application is untimely, having regard to section 67(2) of the Act. The application is accordingly dismissed.