[1983] OLRB Rep. April 493
1845-82-R Alexandra Eadie, Applicant, v. Canadian Union of Public Employees, Respondent, v. The Doctors Hospital, Intervener
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Mmbers W. H. Wightman and Stewart Cooke.
DECISION OF THE BOARD; April 21, 1983
- This is an application by the intervener employer asking the Board to reconsider its decision of February 4, 1983, (Reported at [1983] OLRB Rep. Feb. 227) in which the Board dismissed the instant application for termination of bargaining rights on the ground that it was untimely. The intervener writes as follows:
February 11, 1983
Mr. D. K. Aynsley,
Registrar,
Ontario Labour Relations Board,
400 University Avenue,
TORONTO, Ontario
M5G iSS
Dear Mr. Aynsley:
Re: Alexandra Eadie and CUPE and the Doctors Hospital
— Board File No. 1845-82-R
The intervener, The Doctors Hospital. requests that the Board exercise its jurisdiction under s.106(l) to reconsider its decision in this matter. The request is made on two grounds, firstly, the Board has not addressed the threshold question of whether an appointment of a conciliation officer under s.6 had been made. Secondly, the
Board's decision seems to conclude that the parties could still negotiate a Collective Agreement. The intervener submits that in the circumstances this is not so.
With respect to the first issue, the request for conciliation services was made by the Central Negotiating Committee of CUPE, not jointly (see paragraph 5, Board's decision), nor by Local 1474, CUPE. The local is the party with whom the Hospital negotiates (see the Consent to Alter Working Conditions and the unexecuted "Local Memorandum"). The Memorandum of Conditions for Joint Bargaining, Paragraph 1, sets out that conciliation services shall be applied for to deal with "central issues only." Thus the request for conciliation was neither made by "a party" nor to "endeavour to effect a collective agreement." The officer was requested, and appointed, to deal only with central issues applicable to all participants, and not to attempt to achieve individual collective agreements. (See also 4th sentence, Paragraph 2, Memorandum of Conditions for Joint Bargaining). Therefore, the officer was not appointed pursuant to s.16 of the Labour Relations Act. The Board's decision seems to assume that since the normal forms and form letters were used, that a normal conciliation appointment had been made.
At the hearing, the hospital had argued that the officer was to deal with central issues only, and thus was not appointed for individual hospitals or agreements under s.16. Alternatively, it was argued, if there had been such an appointment, Bill 179 voided that appointment. The Board's decision seems to address the second argument on the assumption that there was a s.16 appointment; however, there is no indication of the basis on which this assumption is made (see Paragraph 8, Board's decision).
The intervener respectfully submits that the Board should reconsider its decision to determine whether an officer had been appointed under s.16.
The second ground on which this request for reconsideration is made arises from the apparent view of the Board that a collective agreement can be achieved.
At the hearing, held 31 January, the Central Memorandum of Settlement was referred to, but could not be entered in evidence since it was not ratified by the Participating Hospitals and the Participating Local Unions until 4 February. A copy of that Memorandum is now enclosed.
The Board will note that the preamble of the Memorandum provides that the terms of settlement are for "extending the collective agreements in their present form." It will be recalled that there was no dispute that a first collective agreement covering the clerical bargaining unit at The Doctors Hospital has not been achieved.
The concept of extending only existing collective agreements is repeated in Paragraph 1. Paragraph 2 provides for a 9% increase to "the classification wage rates contained in the collective agreements" (emphasis added). Paragraphs 4 through 7 deal with local issue bargaining (see paragraph 4 of the Board's decision regarding what issues cannot be dealt with locally). Paragraph 9 of the Memorandum recites that all issues except the wage increase are withdrawn.
With the settlement, the "appointment" of the conciliation officer ceases. However, also with this settlement, no collective agreement can be achieved at The Doctors Hospital to cover the clerical bargaining unit while it remains a participant in Central Bargaining.
The Local Union and the Hospital cannot conclude a collective agreement. Arbitration under s.4 of the Hospital Labour Disputes Arbitration Act is not available to the parties because that section first requires the Minister to inform the parties that an officer has been unable to effect a collective agreement.
As set out above, a conciliation officer was not appointed under s.16, Labour Relations Act, to endeavour to effect a collective agreement. Alternatively, if the Board decides that there was a s.16 appointment, that appointment ceased upon the reaching of a settlement. Thus the Minister could not report to the parties as required under s.4 H.L.D.A.
The only access to arbitration to deal with the issues necessary to conclude a first agreement would arise if the union were to withdraw the clerical unit from the restrictions of central bargaining, and go through the complete negotiation and conciliation process. The consequence of that action is obvious.
Finally, although this may be a matter within the sole jurisdiction of the Inflation Restraint Board, this bargaining unit may be excluded from being covered by the Central Bargaining and Settlement. The settlement provides for a 9% increase in wages. As your Board has said in paragraph 12 of its decision, the parties may be able to negotiate compensation increases up to 5% in a first contract situation. The conflict between the statute and the only substantive issue dealt with in the Central Settlement may be such that this bargaining unit is excluded from the Central Bargaining process.
The intervener requests the Board reconsider its decision in light of the above.
The intervener does not require the Board to reconvene a hearing; however, there is no objection to that procedure if the Board deems it advisable.
All of which is respectfully submitted,
"Brian R. Gatien"
Brian R. Gatien
Counsel for the Intervener, The Doctors Hospital
The power of the Board under section 106(1) of the Labour Relations Act to reconsider one of its decisions is clearly a discretionary one, and the Board has always been careful to confine the exercise of that discretion within narrow limits. As the Board commented, e.g., in Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320, at paragraph 11:
Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence ... or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously. (International Nickel Co. of Canada Ltd., [1963] OLRB Rep. 234, 64 CLLC ¶15,493 (Ont. H.C.); Detroit River Construction Case (1962) CLLC ¶16,260). Both legs of this principle depend upon the applicant having been diligent and therefore having had no opportunity to draw the Board's attention to the object of its concern.
Neither does it enhance the administration and adjudication of labour relations disputes for the Board to embark upon a further inquiry and deliver an elaboration of reasons subsequent to a final decision simply because an unsuccessful party wishes to re-argue its case. Out of regard, however, for the novel issues which arose before the Board in these proceedings, the Board has felt it appropriate to elicit the comments of the applicant and respondent to the intervener's letter, and to now respond briefly to the main points which that letter contains.
Only two issues affected the Board's conclusion in its original decision: had a conciliation officer been appointed with respect to this bargaining unit, and (assuming that it would make a difference) had such an appointment been subsequently voided or terminated?
To facilitate the process of joint bargaining, it is normal for conciliation services under the Labour Relations Act to be applied for on a joint or at least uniform basis for all bargaining units participating in the process. The "Memorandum of Conditions for Joint Bargaining" made clear that this was to occur in the present case as well. The parties making up those bargaining units were referred to in the heading of the Memorandum as:
CANADIAN UNION OF PUBLIC EMPLOYEES On its own behalf and on behalf of each of its Local Unions listed in Appendix "A"
(hereinafter called the Union)
-and-
THE PARTICIPATING HOSPITALS
listed in Appendix "B"
(hereinafter called the "Hospitals").
For a more complete description of the actual bargaining units affected, reference was had, as shown, to Appendices "A" and "B" of the Memorandum. Having regard to those Appendices, there was, and could be, no dispute but that both the service and clerical units at Toronto Doctors Hospital were included in this joint bargaining structure. Conciliation services were applied for and granted, by the terms of the Ministry's letter, for:
"The Participating Hospitals; and Canadian Union of Public Employees on its own behalf and on behalf of each of its Local Unions.
There was no evidence before the Board to suggest that the group of bargaining units referred to in that letter was any different than those which the same words were used to describe in the Memorandum of Conditions for Joint Bargaining under which that very application for conciliation was made. But the intervener argues further that the appointment of Mr. Kean as conciliation officer was, notwithstanding the Ministry's use of the "normal forms and form letters," not an appointment of a conciliation officer under section 16 of the Labour Relations Act. But if it wasn't that, what was it? The intervener points to no other section in the Act giving the Minister the authority to do what he did, and on the facts before it the Board finds this argument to be without foundation.
- Was the appointment of the conciliation officer, as it affected the clerical bargaining unit at The Doctors Hospital, subsequently voided or terminated by virtue of Bill 179? The Board found that it was not. This finding was in no way dependent upon the signing of a subsequent Memorandum of Settlement, or the consummation of a collective agreement. That would raise a different issue of timeliness, and one which the Board did not have to address, since no party by the end of the hearing was maintaining the position that a collective agreement for this unit had been reached. Neither did the Board purport to deal on its own with the level of compensation available in the circumstances of this particular unit under the terms of the Inflation Restraint Act. The observation which the Board made with respect to the wording of sections 12(l)(c) and (d) only noted one more in the series of distinctions which that Act draws between "renewal" and "first agreement" situations, in articulating the contrasting conclusions which the Board arrived at (in comparison with Broadway Manor Nursing Home, etc.) as to the impact of the Act on these two distinct situations.
The interpretation of the recently signed Memorandum of Settlement (submitted after the hearing and Board decision), and its applicability or otherwise to the bargaining unit in question, are matters for the parties themselves to address. The only point of relevance to the Board for purposes of the present application was the recognition that the issues designated as "central" while the joint bargaining structure was in place would obviously have to be disposed of one way or another (i.e., through the process of central bargaining or after its expiry) before a collective agreement for the unit in question could be reached. And for that purpose the Board found that the appointment of the conciliation officer on September 29, 1982, for this particular unit, could not be said to have been frustrated or otherwise voided by the enactment of Bill 179.
- The intervener, subsequent to its request for reconsideration, also placed before the Board a further piece of evidence in this latter regard, in the form of a letter from the Ministry of Labour dated February 7, 1983, which reads:
File No. 82-1355
February 7th, 1983
Ontario Hospital Association,
150 Ferrand Drive,
Don Mills, Ontario.
M3C 3E5
Attention: Mr. Allan Shakes
Re: The Participating Hospitals; and Canadian Union of Public Employees on its own behalf and on behalf of each of its Local Unions
Dear Sir:
By letter of September 29th, 1982, the parties were advised that the Minister of Labour had appointed Mr. F. Kean as Conciliation Officer in the above matter.
This same letter noted that Bill 179 had been introduced and, if enacted, might affect the rights and obligations of the parties under the Labour Relations Act and in particular, the continuation of conciliation proceedings.
As you know, on December 15, 1982 the Inflation Restraint Act received Royal Assent. The effect of this act is to continue collective agreements for the duration of the restraint program, subject to the allowable increases in compensation rates specified in the Act. By the operation of the Inflation Restraint Act, it would appear that a collective agreement is now in effect between the above parties and, therefore, no legal basis exists for continuing this conciliation proceeding. Accordingly, the Minister has directed me to advise you that, subject to any valid arguments which may be made, he has decided to revoke the officer's appointment.
I would refer you to the provisions of the Act itself to ascertain the precise effect of the restraint program on this bargaining relationship.
Yours Very Truly
"Thomas E. Armstrong"
T.E. Armstrong, Q.C.
Deputy Minister
This letter does not, in itself, purport to take any action with respect to the continuance of conciliation under the Labour Relations Act. It merely signals the Ministry's broad intentions in that regard, in assessing the impact of the Inflation Restraint Act, "subject to any valid arguments which may be made." Neither does the Ministry in the letter purport to turn its mind specifically to the situation of a newly-certified bargaining unit such as the clerical unit at Toronto Doctors Hospital; rather, it appears by its reference to contract extension to have been directing its attention to the type of "renewal" situation considered by the Board in Broadway Manor, and which formed the great majority of the units participating in the instant joint-bargaining process. The Board does not find that this letter from the Ministry would cause it to alter either of the material conclusions which it arrived at in rendering its original decision.
- The request for reconsideration is dismissed.