The Employees of the Village of Riverside Glen v. United Food and Commercial Workers Union, Local 175
2123-01-R The Employees of the Village of Riverside Glen, Applicant v. United Food and Commercial Workers Union, Local 175, Responding Party v. The Village of Riverside Glen, Intervenor.
BEFORE: Marilyn Silverman, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.
DECISION OF THE BOARD; November 6, 2001
1This is an application to terminate bargaining rights.
2The responding party ("the union") was certified by the Board on October 16, 2000. On October 26, 2000 the union gave the responding party notice to bargain. On December 22, 2000, pursuant to a request by the union, a conciliation officer was appointed. On September 25, 2001, after a series of meetings the conciliation officer advised the Minister that he had been unable to effect a collective agreement. As of the present time, the parties have not concluded a first collective agreement.
3The responding party ("the union") contends that the application is untimely pursuant to section 12(1) of Hospital Labour Disputes Arbitration Act ("HLDAA"). That section provides that:
- (1) Despite section 67 of the Labour Relations Act, 1995, where a trade union that has been certified as bargaining agent for a bargaining unit of employees of a hospital has given to the employer of such employees notice under section 16 of that Act and the Minister has appointed a conciliation officer, an application for a declaration that the trade union no longer represents the employees in the bargaining unit determined in the certificate may be made only in accordance with subsection 63 (2) of the Labour Relations Act, 1995.
4Section 63(2) referred to in section 12(1) governs the circumstance where a collective agreement is in place.
5The union contends that all the requirements of section 12(1) of HLDAA apply and that an application to terminate bargaining rights can only be brought pursuant to an open period in a collective agreement. In essence, it contends that no application to terminate bargaining rights can be brought prior to the parties entering into a first collective agreement and then only during the open period of that agreement.
6By decision dated October 30, 2001 the Board (differently constituted) found that an earlier termination application between these parties was untimely. The union relies on that decision and submits that this application is res judicata in that the matter has already been determined.
7The employer contends that the application is timely and that res judicata does not apply. It contends that the earlier decision was not made in the context of full legal argument and that in any event the section 12 of HLDAA argument was moot because the earlier application was found to be untimely under a different section of the Act (section 67(1)(a)).
8The employer also raises the argument that section 12 violates the Canadian Charter of Rights and Freedoms.
9Having regard to these circumstances, the Board is not prepared to order the holding of a representation vote in the face of this timeliness objection. The Board will consider submissions as outlined below by no later than Friday, November 9, 2001 following which it will determine how next to proceed:
a) the applicant shall provide submissions, if any, on the timeliness issue including the issue of res judicata in respect of the earlier decision;
b) the employer shall provide additional submissions, if any, on the timeliness issue;
c) the employer shall provide its substantive submissions including all the material facts upon which it relies in respect of the Charter argument and give notice to the Attorneys General, as required.
10The union is not required to respond to these submissions unless requested to do so by the Board.
"Marilyn Silverman"
for the Board