FPSLREB Decisions

[1]   The applicant has submitted an application for a declaration, under section 42 of the Public Service Staff Relations Act (the PSSRA), that the bargaining agent no longer represents a majority of the employees in the bargaining unit. The only issue which arises at this stage is whether the application was presented at a time permitted by the Act.

[2]   The relevant facts can be summarized as follows:

1. The United Food and Commercial Workers Union, Local 832 (UFCW) was certified as bargaining agent for all employees of Canex employed at the Canadian Forces Base (17th Wing Westwin) Winnipeg, Manitoba.

2. A collective agreement was entered into between UFCW and the Staff of the Non-Public Funds, Canadian Forces Base 17 Wing, Westwin, Winnipeg, Manitoba (the employer), effective March 17, 2000.

3. The collective agreement expired on August 14, 2002.

4. The collective agreement does not contain a clause providing that it will continue to operate after its term.

5. The UFCW provided notice to bargain to the employer on June 24, 2002.

6. The applicant submitted its application for revocation of certification of UFCW on January 20, 2004.

[3]   The time constraints for the making of an application for revocation are set out in subsections 42(1) and (2) of the PSSRA, which provide that:

42. (1) Where a collective agreement or an arbitral award is in force in respect of a bargaining unit, any person claiming to represent a majority of the employees in that bargaining unit may, in accordance with subsection (2), apply to the Board for a declaration that the employee organization certified as bargaining agent for that bargaining unit no longer represents a majority of the employees therein.

(2) An application under subsection (1) may be made

(a) where the collective agreement or arbitral award is for a term of not more than two years, only after the commencement of the last two months of its operation;

(b) where the collective agreement or arbitral award is for a term of more than two years, only after the commencement of the twenty-third month of its operation and before the commencement of the twenty-fifth month of its operation, during the two month period immediately preceding the end of each year that it continues to operate after the second year of its operation, or after the commencement of the last two months of its operation, as the case may be; and

(c) where the collective agreement provides that it will continue to operate after the term specified therein for a further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or with a view to the making of a new collective agreement, at any time permitted by paragraph (a) or (b), as the case may be, or during the two month period immediately preceding the end of each year that the agreement continues to operate after the term specified therein.

(emphasis added)

[4]   In light of the above provisions of the PSSRA, the parties were requested to make written submissions on the issue of timeliness.

Submissions of the Parties

[5]   In her initial submissions, the applicant did not address the issue of timeliness.

[6]   The bargaining agent submitted that the timelines set out in subparagraph 42(2)(b) governed the application for revocation. In its view, s.42(2)(b) was open to two possible interpretations - either:

a) such an application could only be made during the two-month period preceding the end of each year that a collective agreement operates, after its second year of operation - thus rendering the application untimely; or

b) the application could be made after the commencement of the last two months of the collective agreement's operation - consequently, the application would be timely.

[7]   In reply, the applicant stated that:

[w]e feel that our request is timely as we were all hired after June 14, 2002 therefore it was impossible for us to follow this time line stated in Section 42(2)(b), however, the same section does state that an application may be made after the commencement of the last two months of the Collective Agreement's operation. The Collective agreement's last two months of operation commenced 14 June 2002.

Reasons for Decision

[8]   Both of the parties limited their submissions to the effect of subsection 42(2) on the timeliness of the application. However, before subsection 42(2) can be addressed, the opening words of subsection 42(1) must be considered. Subsection 42(1) sets out that an application for revocation may be made "where a collective agreement is in force". If the collective agreement is not in force, can an application for revocation be made during one of the time periods specified in s.42(2)?

[9]   This issue was considered by the Public Service Staff Relations Board in Lansey v. PSAC (P.S.S.R.B. File No. 150-20-17 (1987) (QL)). In that case, an application for revocation was made under section 41 [the equivalent of the current section 42]. PSAC had argued that as no collective agreement had been in force when the application was made, the application was untimely and, accordingly, a nullity. In its reasons for decision, the PSSRB framed the issue as follows:

The principal question the Board must consider is whether.. the condition precedent found in subsection 41(1) of the Act was satisfied, that is, whether "a collective agreement.[was] in force in respect of [the] bargaining unit".

[10]   As stated above, subsection 42(1) is a condition precedent to the making of an application for revocation. Accordingly, it is not necessary to consider whether such an application falls within the window set out in subsection 42(2), unless I am first satisfied that a collective agreement is in fact in force.

[11]   In the instant case, the collective agreement expired on August 14, 2002. Consequently, when the application for revocation was made in 2004, there was no collective agreement in force. It should be noted, however, that notice to bargain has been given and the parties are currently in negotiations. In light of this fact, section 52 of the PSSRA operates to continue any term or condition of the collective agreement. Does section 52 of the PSSRA extend the life of the collective agreement? This question was also considered in Lansey, supra. In that case, the Board found that this section "does not have the effect of maintaining the collective agreement in force, but only the terms and conditions of employment". Accordingly, the Board in Lansey found that there was no collective agreement in force and the condition precedent for the filing of an application was not met.

[12]   Similarly, in the case at hand, the collective agreement was not in force at the time of the application for revocation. Once expired, the life of the collective agreement cannot be extended by the operation of section 52. As the condition precedent for the making of an application under subsection 42(1) was not met, subsection 42(2) is irrelevant. The collective agreement was not in force at the time of the application for revocation and accordingly, I find that the application for the revocation of certification is untimely. For these reasons, I hereby dismiss the application without an oral hearing pursuant to section 8 of the P.S.S.R.B. Regulations and Rules of Procedure, 1993.

Yvon Tarte,
Chairperson

Ottawa, June 29, 2004.