W. Thomas Arnold v. Retail Commercial and Industrial Union, Local 206, 1982 CanLII 1016

Ontario Labour Relations Board

[1982] OLRB Rep. October 1436

0486-82-R W. Thomas Arnold, Applicant, v. Retail Commercial and Industrial Union, Local 206 Chartered by the United Food and Commercial Worker International, Respondent, v. Comstock Funeral Home Ltd., Intervener

BEFORE: M. G. Picher, Vice-Chairman, and Board Members W. H. Wightman and S. Cooke.

APPEARANCES: Donald D. White, W Thomas Arnold, Tim English and Norm Massie for the applicant; Raj Anand, Charles William McCormick, Jack Colvin and Vic Surerus for the respondent; Steven J. McCormack, F R. von Veh and J. Hotston for the intervener.

Decision of M. G. Picher, Vice-Chairman and Board Member S. Cooke; October 12, 1982

1. This is an application for the termination of bargaining rights under section 57(1) of the Labour Relations Act. That section provides as follows:

If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.

2. The issue raised in this application is whether the period of one year after certification referred to in section 57(1) is to be calculated from the date of interim certification or from the date on which a final board certificate has issued.

3. This application was filed on June 9, 1982. It is common ground that interim certification was granted to the respondent for a bargaining unit of all employees of the Comstock Funeral Home, save management and part-time employees, on May 25, 1981. Interim certification issued pursuant to Section 6(2) of the Act which provides:

Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the trade union's right to certification, the Board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bargaining unit.

4. On the date of the certification hearing the parties were disagreed as to the employment status of Ms. Cathy Simonds, classified as "Secretary to the Home". That matter was referred to a Labour Relations Officer. Subsequently the parties themselves settled the issue of the secretary's status, agreeing that she should be included in the bargaining unit. No further issues being outstanding the Board issued a certificate on June 30, 1981. Notice to bargain was given to the employer on June 4, 1981. No collective agreement has been concluded since then.

5. The respondent union submits that no application under section 57(1) for the termination of its bargaining rights could be filed until June 30, 1982, and that the instant application, being filed on June 9, 1982, is untimely and must therefore be dismissed. Counsel for the applicant and for the intervener employer submit that an application for the termination of the union's bargaining rights can be brought any time after the expiry of one year from the date of interim certification. The issue raised is before the Board apparently for the first time since section 6(2) was introduced into the Act in 1975. Given the importance of the timeliness issue in this case, the Board requested written argument from the parties.

6. Counsel for the applicant and for the employer submit that "certification" in section 57(1) must be read as including interim certification. They submit that the union is given a full year to bargaining a collective agreement from the date of interim certification and that in the contemplation of the Act it is open to employees to seek to terminate bargaining rights if a collective agreement has not been made in that time. Since the employer is bound to bargain in good faith with the union after interim certification it would, in their view, be inconsistent with the scheme of the Act to calculate the eligibility date for a termination application from a different certification date. Section 14 of the Act gives a union the obligation to give written notice of its desire to bargain "following certification". The Board has concluded that certification in that section includes interim certification under section 6(2), and that bargaining for a first collective agreement should generally commence from that point, notwithstanding the unresolved issue of the composition of the bargaining unit. (City of Mississauga Public Library Board, [1976] OLRB Rep. Feb. 2.) The applicant and intervener submit that it would be inconsistent to give the word "certification" different meanings as applied to sections 14 and 57 of the Act.

7. Counsel for the respondent submits that to read the word "certification" in section 57(1) of the Act to include interim certification would be out of keeping with the realities of collective bargaining and inconsistent with the true intention of the Act. He also submits that the language of section 57(1) supports the conclusion that a formal certificate must have issued for a full year before a termination application can be entertained. His argument appears to rely on the fact that there is no such thing as an "interim certificate", the only certificate issued by the Board being the final, formal certificate that concludes an application for certification. On this point counsel for the union submits:

This section clearly contemplates that the application is to be made after the expiry of one year from the date of the formal certificate. The phrase "any of the employees in the bargaining unit determined in the certificate" is explicit with respect to who can make the application, and until a formal certificate is issued there is no 'bargaining unit determined in the certificate". At the date of interim certification there is still doubt about the composition of the bargaining unit, and hence the year should only start running at the date of the formal certificate, when the bargaining unit composition has been determined.

8. Counsel for the union also submits that it would be inequitable to entertain a request for a vote under section 57(3) of the Act where a year has not expired from the issuing of a formal certificate. To do so would, he argues, force employees who might only have been determined to be included in the unit well after interim certification, to vote at a time when they have not been participating members of the bargaining unit for a full year. In his submission the Act contemplates that all employees in a bargaining unit should have a full year to decide whether to continue or terminate their union's bargaining rights or, implicitly it seems to the Board, to seek another bargaining agent.

9. The union also submits that its own ability to bargain a collective agreement is prejudiced if the clock for termination begins to run when the final composition of the unit is still unresolved:

Interim certification allows the trade union to commence bargaining with the employer, but the trade union can only commence bargaining on behalf of the employees who are in the unit at that time. The trade union's ability to bargain on certain items is greatly restricted when it does not know the final composition of the unit, and it cannot bargain on any items for employees who are not in the unit at the time of interim certification and who are subsequently included by the formal certificate. It is, of course, impossible for a trade union to finalize a collective agreement with the employer at this time. The Board recognized the difficulties inherent in bargaining after interim certification in City of Mississauga Public Library Board, (1976) OLRB Rep. (Feb) 1.

In the case before the Board, six weeks elapsed between the granting of interim certification and the issuance of a formal certificate. However, it is not unusual for six months to elapse (see Trent University Board of Governors, (1980) OLRB Rep. (June) 922; Weight Loss Inc., (1980) OLRB Rep. (Dec) 1841; and Children’s Aid Society of Metropolitan Toronto, (1978) OLRB Rep. (Jan) 98), or even for eight months to elapse (see Windsor Arms Hotel, (1978) OLRB Rep. (May) 472). In these circumstances, the time in which the union is able to bargain on behalf of some employees in the bargaining unit determined in the certificate would be sharply decreased if the one year period commenced at the date of interim certification.

In University of Windsor, [19771 OLRB. Rep. (May) 300, an interim certificate was issued on May 11th, 1976, and a formal certificate (which included the person in dispute as a member of the bargaining unit) was issued on May 9th, 1977. If an application for decertification could have been made after the expiry of one year from the interim certification, the union would only have had two days in which to negotiate a collective agreement which included provisions covering the disputed employee.

In York University (1977) OLRB Rep. (Oct) 611, interim certification was granted on April 6th, 1976, and the formal certificate was issued on October 18th, 1977. Hence, eighteen months elapsed between the two dates. It would be anomalous to formulate a rule that the one year period starts running at the date of interim certification when the results would be that the union could be decertified even before it had obtained its formal certificate and before it had the status to make a collective agreement.

10. Counsel for the union submits that nothing should be allowed to abridge the time which a union has in which to make a first collective agreement. He submits that that is especially so where, as in the instant case, the Board has found that the employer has resorted to unfair labour practices and "has engaged in a persistent pattern of anti-union conduct in response to its employees' decision to become organized" (See, decision report at [1981] OLRB Rep. Dec. 1755) In this regard he submits:

While recognizing that the Board has held that it has no discretion to extend the one-year period because of an employer's failure to bargain in good faith, it is submitted that the Board should be cognizant of the employer's deliberate attempts to thwart the wishes of its employees and the efforts of the trade union, and should be extremely cautious not to do anything which may hinder the trade union further. The Board must decide at which of the two dates the one-year period commences, and the respondent argues that the later date should be chosen so as not to allow the employer's actions to prejucice the trade union any more than it has already been.

11. As real as these last concerns may be to the respondent union, the Board obviously cannot give content to the general words of the Act based on the equities of the particular case before it. That is not to say, however, that where the language of the Act is open to two possible interpretations, as it is here, the Board may look to the policy implications of either interpretation. As the body responsible for the administration of the Act it must choose the alternative most consistent with the objects of the Act and the general intention of the Legislature.

12. Interim certification was introduced as a means to overcome the difficulty of stagnation in a union's campaign to represent employees. The period immediately following the filing of an application for certification is critical for the success of a union. Prior to the 197 amendments to the Act a union's application for certification could be held up indefinitely pending litigation over the description of the bargaining unit, even though it was plain that it would eventually emerge with a certificate and the right to represent a unit of employees. Support for a union that has promised to work for the betterment of wages and working conditions naturally diminishes among employees who can see no bargaining going on their behalf weeks and sometimes months after they have given their support to the union's certification drive. Any delay in the collective bargaining process, like a delay in certification or in the taking of a representation vote, generally works to the disadvantage of a union. That is the reality that underlies the comment of Estey C.J.O. (as he was then) in Journal Publishing Company of Ottawa Ltd. et al. v. The Ottawa Newspaper Guild, Local 205 et al., (decision declining leave to appeal, unreported, Ontario Court of Appeal, March 31, 1977):

In the law which has grown up around labour relations in this province, and indeed elsewhere where the common law is pursued, the overriding principle invariably applied is that labour relations delayed are labour relations defeated and denied.

(See also Innis Christie, "Certification — is there a better way to test employee wishes?" The Direction of Labour Policy in Canada, Frances Bairstow, editor (Montreal: McGill University Industrial Relations Centre, 1977, 51).)

13. The sole purpose of section 6(2) of the Act is to get the union started on the road to bargaining on behalf of employees as soon as it is clear that its numerical support among the employees will ensure the eventual granting of a certificate. The Board recognized early on, however, that interim certification will not necessarily give a union the ability to bargaining fully on all issues and that its ability to make a collective agreement may have to await a final clarification of the composition of the bargaining unit. It did not see that, however, as a reason to deny interim certification. In the City of Mississauga Public Library Board the Board commented (at p. 3):

The legislative intent of section [6(2)] is to permit the parties to proceed with those aspects of bargaining which are not dependent on a final resolution of bargaining unit disputes so as not to delay the onset of the already lengthy bargaining process. The Board ought not to withhold interim certification on the grounds that the bargaining unit dispute precludes the negotiation of certain items or precludes a conclusion of negotiations.

14. As the foregoing passage makes clear, section 6(2) of the Act is conceived as giving a union the right to commence bargaining to the extent that bargaining can get started. It is not, however, a section that puts a final definition to a union's bargaining rights. On the contrary, the final measure of a union's rights are in abeyance when interim certification is granted. It cannot then be said with any certainty that the union has achieved the full measure of its rights. Significantly, in cases where the unresolved dispute over the bargaining unit involve a substantial number of employees or even a small number of key employees whose participation in a strike would be critical, the bargaining strength of the union may be appreciably less during interim certification than it would be after the issuing of a final certificate which has the effect of including those critical employees in the ranks of the bargaining unit. As the Board recognized in the City of Mississauga Public Library Board case, bargaining under interim certification may be significantly circumscribed; a union awaiting the final determination as to which employees it represents may not be in a position to make a collective agreement. Its full bargaining rights and the measure of its ultimate bargaining power may well have to await the issuing of the Board's final certificate.

15. There are two forms of certification under the Act, each with its own purpose. When the provisions of section 6(2) are viewed in this context, we see nothing inconsistent in the interpretation of the word "certification" in section 14 of the Act as requiring bargaining to commence after interim certification and in section 57(1) to contemplate a period of one year from the granting of a final certificate. Each section is directed to a different end: the first eliminates any prejudice to a union by getting the process of bargaining under way as quickly as possible during the period of high employee expectations surrounding certification; the second assures that the union has a clear period of one year in which to convert its bargaining rights into a collective agreement for all of the employees it represents. For the reasons outlined above, it appears to be Board that this last end can be fully achieved only after the union's bargaining rights are finally determined in a Board certificate. We must agree with counsel for the union that it would be anomalous in those cases involving extensive examinations and litigation over the final composition of the bargaining unit - occasionally extending more than a year after interim certification - for a union's bargaining rights to be terminated before they have been conclusively defined and certified.

16. Counsel for all parties rightly point out from their respective points of view that the calculation of the open period for termination applications or for displacement applications by rival unions will have an impact on the right of employees and of other unions to challenge existing bargaining rights, as it will on the period that employees will have to participate in the bargaining process. While it is true that the rights of employees and other unions will be incidentally affected by the certification timetable, we see in that nothing unusual or prejudicial. The rights of those same parties could vary with respect to timing just as much before the introduction of interim certification into the Act. The granting of certificates and the commencement of the one year period always had to await the indefinite date of a final certificate and could vary from case to case.

17. There is nothing unusual or sinister in that. The rights of employees and other unions are similarly affected by other timing provisions of the Act. When for example, a three year collective agreement is signed, an employee's right to apply for a termination of bargaining rights is stayed for thirty-four months whereas it could be exercised after ten months of a collective agreement whose term is for one year. The scheme of the Act builds-in considerable flexibility, allowing considerable latitude in the timing of individual rights depending on the settlements made, or not made, by the parties to collective bargaining. While the same general rights and duties devolve on all employees and unions under the Act, the timing and duration of the period when those rights may be exercised will vary according to the context of particular cases. We are not, therefore inclined to give great weight to the argument of the union that all employees should be assumed to have the right to participate in the affairs of a bargaining unit for at least one year or to the similar argument of the applicant and employer that no employee should be required to wait more than a year before he can exercise his right to apply for a termination of a union's bargaining rights. In our view, both sections 6(2) and 57 are enacted to give minimal rights and protections to trade unions that have been certified, and they should be interpreted in that light. While the rights of employees and other unions are necessarily the opposite side of the coin, to interpret those provisions primarily from the perspective of individual employees or third party unions is tantamount to looking at those sections through the wrong end of the telescope.

18. The purpose of section 57(1) is to assure a minimal degree of stability in bargaining rights. It guarantees that any union certified has a full year to represent the employees described in a certificate without fear of termination. For the reasons canvassed above, to interpret the open period in section 57(1) as running by reference to interim certification would prejudice that stability considerably. In a statute dedicated to the establishment and preservation of collective bargaining rights, such an interpretation would have a curiously negative effect. It would place a premium on delay in the certification process: an employer bent on defeating a union's bargaining rights would have every reason to force a union into interim certification. With little imagination it could raise objections to the composition of the bargaining unit with a view to holding up the examination process as long as possible while, over time, employee support slowly ebbed from a union apparently unable to finalize its bargaining rights and secure a collective agreement. That would be a result, in our view, inconsistent with the general scheme and purpose of the Labour Relations Act and directly contrary to the specific purpose of section 6(2).

19. The language of the Act also supports the conclusion that it intends bargaining rights to be terminable only one year after the granting of a final board certificate. Bearing in mind that there is no such document as an "interim certificate" issued by the Board, but only interim certification by a Board decision, it is significant that section 57(1) provides that an application for termination may be made only by "any of the employees in the bargaining unit determined in the certificate" (emphasis added). There is a clear distinction, recognized by the Board, between the bargaining unit that is subject to interim certification, which invariably excludes persons whose status is in dispute, and the bargaining unit described in the ultimate certificate which is finally issued by the Board, (see, University of Ottawa, [1975] OLRB Rep. Sept. 694 at 698). The granting of a formal Board certificate is contemplated as a precondition to the filing of an application for the termination of bargaining rights under section 57(1). When, in excepttional cases like York University, cited above, the formal certificate issues more than one year after interim certification, there can obviously be no reference to "employees in the bargaining unit determined in the certificate" until the certificate itself has issued. There could not, in other words, be any employee so qualified on the anniversary date of interim certification. That, in our view, supports the conclusion that the one year period in section 57(1) should be computed from the date of the certificate referred to in the same section. That was clearly the case before section 6(2) was enacted. We do not see why a trade union should be in a worse position in the protection of its bargaining rights because of the introduction of section 6(2).

20. It is worth noting that other provisions of the Act also contemplate the granting of a formal certificate as a precondition to their operation. Section 61 of the Act, which determines the time at which one union may apply to displace the bargaining rights of another, contemplates the pre-existence of a formal certificate. It provides, in part,

61. (l) 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) thirty days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator; or

(b) thirty 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; 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.

(3) Where a trade union has given notice under section 14 and the employees in the bargaining unit on whose behalf the trade union was certified as bargaining agent thereafter engage in a lawful strike or the employer lawfully locks out such employees, no application for certification of a bargaining agent of, or for a declaration that the trade union no longer represents, the employees in the bargaining unit determined in the certificate shall be made,

(a) until six months have elapsed after the strike or lock-out commenced; or

(b) until seven months have elapsed after the Minister has released to the parties the report of the conciliation board or mediator or a notice that the Minister does not consider it advisable to appoint a conciliation board,

whichever occurs first.

(emphasis added)

21. Perhaps the clearest and most compelling section of the Act on this issue is section 5(2), which governs the time at which one trade union may apply to displace the bargaining rights of another. It provides:

5 (2) Where a trade union has been certified as bargaining agent: of the employees of an employer in a bargaining unit and has not entered into a collective agreement with the employer and no declaration has been made by the Board that the trade union no longer represents the employees in the bargaining unit, another trade union may, subject to section 61, apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit determined in the certificate only after the expiration of one year from the date of the certificate.

(emphasis added)

It is plain that employees who want to terminate a union's bargaining rights by shifting their allegiance to another union cannot do so after one year from the interim certification of the incumbent union. The union acting for them must await a full year from the date of the formal certificate issued to the union that holds the bargaining rights. If the applicant's interpretation of section 57(1) holds, however, the same employees and their new union could do indirectly what they cannot do directly, by bringing an employee sponsored application for termination under section 57(1) on the anniversary date of interim certification, thereby opening the way for an application by their new union.

22. In our view, that possibility would not only defeat the stated intention of section 5(2) of the Act, but would introduce a genuine inconsistency in its provisions. The extinguishment of bargaining rights under the Act is generally treated the same, whether it be by a displacement certification or by an application for termination. Both types of application are treated in the same way for the purposes of timetables established under the Act. That is illustrated by reference to the provisions of section 61, above. The termination of bargaining rights under section 57(1) and their displacement under section 5(2) are treated for the purposes of timing as parallel procedures, both of which are "subject to section 61". The Act plainly intends that sections 5(2) and 57(1) should operate on the same timetable, just as they did prior to the introduction of section 6(2). We can see no reason why the legislature would have intended to make the bargaining rights held by a newly certified union vulnerable at an earlier date under section 57(1) than under section 5(2). A change in the law of that magnitude would require clear and unequivocal language. The language of section 57(1) read together with the other provisions of the Act, including section 5(2), supports the conclusion that the bargaining rights of a union that has been certified and has not made a collective agreement are not subject to attack for a minimum of one year from the date of the certificate issued by the Board.

23. For the foregoing reasons we conclude that in the instant case an application for a declaration terminating the bargaining rights of the respondent could not be brought until June 30, 1982, being one year after the issuing of the Board's certificate to the respondent union. The application is therefore dismissed.

Decision of Board Member W. H. Wightman;

1. The decision raises two issues about which I wish to express my respectful concern.

2. Expedition in the final determination of the bargaining unit is vitally important in fairness to the individuals whose status is in question. As has been mentioned it is also vital to the successful conclusion of a first collective agreement and hence expedition serves the interest of harmonious industrial relations.

3. Thus it seems to me consistency with the public policy objectives of the legislation dictates a decision which will serve as an inducement to the parties, and indeed the O.L.R.B., to resolve questions of employee status as quickly as possible. Thus if I am unable to argue the law with my colleagues I do question the effects of the decision in terms of practical labour/management relations and its fairness both to employees whose status is in question and, in this case, to the applicant and those employees the applicant represented who might have been found to have comprised a majority of employees in the bargaining unit had the issue been put to a secret ballot vote.

4. To the extent this decision removes an incentive to resolve status questions, thus giving rise to the potential for more cases in which final determination of the bargaining unit and the possibility of concluding a collective agreement may be deferred as much as eighteen months (as in York University supra), I do not see public policy being well served.

5. As to the employees represented by the applicant it does not seem to me good enough to let a decision issue without noting there is a presumption he knew, or should have known he could have withdrawn the petition and re-submitted it in timely fashion. Since, as has been pointed out, “the issue raised is before the Board apparently for the first time”, I presume neither the experienced counsel arguing for the respondent and intervener, let alone the applicant, could have anticipated the Board's decision. For this reason I would have thought natural justice dictates that we at least entertain the petition for purposes of assessing its voluntariness even at this date.