Northwestern Health Unit v. Ontario Nurses' Association, 1980 CanLII 816

[1980] OLRB Rep. June 879

0147-80-M Northwestern Health Unit, Employer, v. Ontario Nurses' Association, Trade Union.

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members D. B. Archer and J. D. Bell.

APPEARANCES: Donald F. Hersey for the trade union; F. Bickford for the employer.

DECISION OF THE BOARD; June 16, 1980

1. This is an application under section 96(1) of The Labour Relations Act in which the Minister seeks the opinion of the Board as to his authority to appoint a person to constitute a Board of Arbitration. The relevant provisions of the statute are as follows:

96.-(l) Where a request is made under section 15, subsection 4 of sec­tion 37 or subsection I of section 37a, the Minister may refer to the Board any question that arises that in his opinion relates to his authority to make an appointment under any such provision that is mentioned in the reference, and the Board shall report to the Minister its decision on the question.

37.-(4) Notwithstanding subsection 3, if there is failure to appoint an arbitrator or to constitute a board of arbitration under a collective agree­ment, the Minister upon the request of either party, may appoint the arbi­trator or make such appointments as are necessary to constitute the board of arbitration, as the case may be, and any person so appointed by the Minister shall be deemed to have been appointed in accordance with the collective agreement.

2. The parties are agreed on the facts. The parties were bound by a collective agree­ment which expired on December31, 1978. Proper notice was given and the parties engaged in negotiations with a view to concluding a collective agreement. These negotiations were unsuc­cessful. On September 25, 1979 the union wrote to the employer requesting that it constitute an "interest arbitration board" to settle the terms of the next agreement, and advising the em­ployer of its nominee to that Board. The union relies upon Article 20.03 of the previous agree­ment which, it argues, provides the foundation for this interest arbitration process. Article 20.03 provides:

"All negotiations for amendments or renewal of this agreement shall be in accordance with the terms of the Ontario Labour Relations Act, R.S.O. 1970, Chapter 232, and any amendments thereto, and the Hospi­tal Labour Disputes Arbitration Act, R.S.O. 1970, Chapter 208, and any amendments thereto."

The union contends that the reference to the Hospital Labour Disputes Arbitration Act in Article 20.03 incorporated by reference all of the interest arbitration procedures set out in that Act and that the employer is bound by Article 20.03 to engage in a process of interest arbitra­tion which will ultimately result in a new collective agreement. The employer contends that Article 20.03 has no such effect, and that it was not the intention of the parties to provide for interest arbitration of their next agreement. There is, therefore, a dispute between the parties concerning the interpretation of Article 20.03 which crystalized on or about September 25,' 1979 when the respondent refused to appoint a nominee to a Board of Arbitration purportedly constituted pursuant to that Article.

3. On September 27, 1979 the Minister of Labour informed the parties that he did not consider it advisable to appoint a conciliation board. Fourteen days after the release of this "no board" report, the parties were in a position to engage in a legal strike or lock out (see sec­tion 63(2)(b) of the Act); and the statutory "freeze" of working conditions provided by section 70(1) of the Act, came to an end. On February 22, 1980 (following some correspondence with the employer and the Minister of Labour which is not here relevant) the union purported to "file a grievance" under the terms of the collective agreement, alleging a failure by the em­ployer to comply with the provisions of Article 20.03.

4. In our view the only facts relevant to our determination are that the dispute con­cerning the interpretation of the agreement arose prior to the expiry of the section 70 freeze and that the union now seeks to have the employer's alleged breach of the freeze determined by a Board of Arbitration. The statutory provisions creating the freeze and prescribing the manner in which alleged breaches of the freeze can be remedied are as follows:

70.-(l) Where notice has been given under section 13 or section 45 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the em­ployer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty to the employer, the trade union or the employees,

(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and,

(i) seven days have elapsed after the Minister has released to the

-parties the report of a conciliation board or mediator, or

(ii) fourteen days have elapsed after the Minister has released to the parties a notice that he does not consider it advisable to

appoint a conciliation board,

as the case may be; or

(b) until the right of the trade union to represent the employees has been terminated

whichever occurs first.

(3) Where notice has been given under section 45 and no collective agreement is in operation, any difference between the parties as to whether or not subsection I of this section was complied with may be re­ferred to arbitration by either of the parties as if the collective agreement was still in operation and section 37 applies mutatis mutandis thereto.

5. In our view section 70(3) provides a complete answer to the employer's objection to the appointment of a person to constitute a Board of Arbitration. Section 70, subsection (1) preserves all of the terms and conditions of employment previously embodied in the collective agreement, including Article 20.03. An alleged breach of section 70 may be dealt with by this Board under section 79; or, alternatively the parties may have the matter dealt with by a board of arbitration pursuant to section 70(3). The union contends that on September 25 there was such a breach and seeks access to arbitration under section 70(3), which incorporates section 37(4) mutatis mutandis. Section 37(4) allows the Minister to appoint an individual to consti­tute a Board of Arbitration. We are satisfied, therefore, that the Minister does have jurisdic­tion to appoint a person to constitute such "rights" arbitration board.

6. We do not wish to leave this matter without emphasizing the narrow question which was put to the Board and which we have answered vis: whether the union is entitled to have a rights arbitrator rule on its interpretation of Article 20.03 (as preserved by section 70(1). We express no opinion on the arbitrability of the union's grievance, the "reasonableness" of the union's interpretation of Article 20.03, the arbitrators' remedial authority, (if any), of the rela­tionship between this process and the general scheme for interest dispute resolution set out in the Labour Relations Act. These questions pose considerable difficulty (see for example, Grey Owen Sound Regional Health Unit [1979] OLRB Rep. Aug. 751) and it is unnecessary on this section 96 reference to address any of them.