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Court File and Parties
**File No.:** 3167-99-R
**Date:** 2000-01-31
**Ontario Labour Relations Board**
**Applicant:** Jill Gibson, personally and on behalf of the Employees of East Side Mario’s
**Responding Party:** United Food and Commercial Workers International Union, Local 175-633
**Employer:** East Side Mario’s
**Before:** Patrick Kelly, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.
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Decision of the Board
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[1] The applicant has applied to the Board under section 63 of the Labour Relations Act, 1995 for a declaration that the responding party no longer represents the employees in the bargaining unit for which it is the bargaining agent.
[2] In its response, the responding party (the “union”) contends that the application is untimely. The union states that notice was given to the intervenor to bargain the renewal of the collective agreement covering the employees who have brought this application. The union also alleges that a conciliation officer of the Ministry of Labour has been appointed to endeavour to assist the parties in the completion of the renewal collective agreement. Finally, the union contends that the application was filed following the expiry of the collective agreement. For these reasons, the union submits, the application should be dismissed pursuant to section 67(2) of the Act.
[3] Section 67(2) reads as follows:
> 67. (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agreement and no application for a declaration that the trade union that was a party to the collective agreement no longer represents the employees in the bargaining unit as defined in the agreement shall be made after the date when the agreement ceased to operated or the date when the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,
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> (a) at least 12 months have elapsed from the date of the appointment of the conciliation officer or a mediator;
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> (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
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> (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,
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> whichever is later.
[4] The applicant and the intervenor are directed to provide to the Board and to the other parties in this matter submissions in response to the union’s position, as set out in paragraph 2 above, concerning the timeliness of this application. These submissions are to be filed with the Board and delivered to the other parties on or before February 2, 2000.
[5] This panel of the Board remains seized to deal with the submissions of the parties regarding the timeliness issue.
“Patrick Kelly”
for the Board
minicounsel