Harold Fairweather v. Canadian Union of Public Employees

[1983] OLRB Rep. July 1203

0488-83-R Harold Fairweather, Applicant, v. Canadian Union of Public Employees, Respondent, v. Salvation Army House of Concord, Intervener.

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members I. M. Stamp and A. Hershkovitz.

APPEARANCES Marshall Garnick, H. Fairweather; Whitney Meade and WaIlly W. Wilson for the applicant; Helen O’Regan and Allanl Dymond for the respondent; Norman A .Keith and Major Bowes for the intervener.

DECISION OF THE BOARD; July 21, 1983

1. The name of the respondent is amended to) read: "Canadian Union of Public Employees".

2. This is an application for a declaration terminating bargaining rights, filed pursuant to the provisions of section 57(2) of the Labour Relations Act. That section provides:

57.-(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,

(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months o)f its operation;

(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commence­ment of the last two months of its operation, as the case may be;

(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any 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 to the making of a new agreement, only during the last two months of each year that it so continues to operate or after the commencement of the last two months of its operation, as the case may be.

3. The collective agreement here in question provided for an expiry date of June 30, 1983. The application was filed on June 6, 1983, within the two months prior to June 30, 1983. The parties are, however, governed by the provisions of the Inflation Restraint Act, 1982, and the respondent trade union relies on the Board's decision in Fiddicks Nursing Home and Broadway Manor Nursing Home, [1983] OLRB Rep. Jan. 26, in asking the Board to find that this application is untimely.

4. The Board in the two cases referred to above (which we will refer to as "Broadwav Manor"). after a careful consideration of the provisions of the Inflation Restraint Act, 1982 and the Labour Relations Act, determined that the former Act in effect overrode the provisions of the Labour Relations Act by extending for a period of one year collective agreements otherwise expiring within the restraint period. This, the Board noted, had the effect of postponing what would otherwise be the "open period" for the purpose of testing questions of representation. The case before the Board in Broadwaay Manor in fact involved a displacement application for certification by a rival trade union, but the Board's analysis and comments in the case made it clear that it felt that applications for declarations to terminate bargaining rights stood in a parallel situation. As the Board observed at paragraph 20 of that decision:

5. ... If the open period is closed for purposes of filing a timely displacement application for certification, it must also be closed for purposes of ascertaining the timeliness of an employee application to terminate bargaining rights and for purposes of giving notice to bargain under section 53 of the Labour' Relations Act.

And further at paragraphs 29 and 30:

29….The language of section 13 of Bill 179, when read in the context of the Bill as a whole, forces us to the conclusion that it was intended to extend the collective agreements brought within its ambit. The effect of this interpretation is to close out the open periods provided in the Labour Relations Act at the commencement of the last two months o)f the operation of the collective agreement. This interpretation has a dramatic effect upon the operation of the Labour Relations Act in respect of representation applications, notice to bargain, appointment of conciliation officers and the right to strike or lockout. However, section 13 of Bill 179 is expressly made to operate "notwithstanding any other Act". These are forceful words which, in the face of the definition of a collective agreement contained in Bill 179, as including a collective agreement under the Labour Relations Act, and the interrelationship between the two statutes, and in the absence of any saving language as is used in respect of the Human Rights Code and the Employment Standards Act, speak to the awareness of the legislature of the conflict between the two statutes and its intention that Bill 179 prevail.

30….In our view, the relevant language of Bill 179 does not admit to more than a single reasonable interpretation. The Bill extends the operation of collective agreements which would otherwise cease to operate and, in so doing may render untimely a representation application or prevent the appointment of a conciliation officer and consequently abridge the right to strike or lockout under the Labour Relations Act or the right to an arbitrator under the Hospital Labour Disputes Arbitration A ct.

5. The analysis of the Board in Broadwav Manor did not turn on any specific language in section 5 of the Labour Relations Act (the certification section), and, once again, clearly saw displacement applications for certification and applications to terminate bargaining rights as being on the same footing. The respondent trade union points out that if it were otherwise, employees wishing to change bargaining agents at the point which Broadway Manor indicates they are not entitled to, need only bring a termination application and then a short time later have their new choice of union apply for certification. Counsel for the applicant sought to justify the apparent anomaly of the Inflation Restraint Act of treating the two types of applications differently on the basis that the real purpose of the Act is simply to restrain compensation, and the motivation of employees seeking to adopt the "non-union" option may have nothing to) do with a desire for increased compensation. He also submits that the Board ought to hear the evidence of motivation in each case, to determine whether or not such is the case.

6. But the same argument could be made with respect to displacement applications, so that the applicant is really asking the Board to reconsider its decision in Broadway Manor. The Board finds no reason to do so. The Board's conclusions in Broadway Manor did not turn on any questions of motivation, but rather on a careful analysis of the language of the two Acts, and the relationship of the statutory scheme for representation applications to the temporary impact of the Inflation Restraint Act on the scheme for collective bargaining as a whole. In line with the Board's reasoning in Broadway Manor, we find that the extension of collective agreements by the Inflation Restraint Act has the effect of postponing the "open period" for termination applications as well.

7. The intervener employer, however, points to section 57(2)(c) of the Labour Relations Act, and argues that this subsection distinguishes the present situation from that of an application for certification under section 5. He points out that the subsection contemplates the preservation of the initial "open period" where the collective agreement has been extended by the parties' default, and relies in that regard on the decision of the Board in Canadian Chemical Workers Union, [19801] OLRB Rep. July 952. In that case the collective agreement contained the usual clause providing for the continuation of the agreement from year to year in the event that either party failed to give notice to bargain for its amendment. The union had failed to comply completely with the requirements for the giving of notice under the collective agreement, and a termination application was filed in what normally would have been the last two months of the agreement. The union sought to rely on its own failure to give proper notice to argue that the collective agreement had been hence extended for a further year, and that that extension rendered the application filed for termination untimely. The Board stated at paragraph 6, contemplating the provision of additional "open periods" in section 57(2)(c):

8. Section 157 j(2)(c) regulates the timeliness of termination applications in the case of collective agreements which provide that they will continue to operate for a further term if either party fails to give a timely notice to bargain. The section sets out two alternatives when such applications might be untimely - both of which occur during the extended term. We do not think however, that the specification of open periods referable to the extended term, was intended to take away the open period which would have arisen in the normal course.

The instant case also involves a collective agreement which contains the usual form of termination clause, specifically:

ARTICLE 30 - TERMINATION

30.01 This Agreement shall remain in force until June 30, 1983, and shall continue in force from year to year thereafter unless in any year not more than ninety 90 days and not less than thirty 30 clays before the date of its termination, either party shall furnish the other with a notice of termination of, or proposed revision to, this Agreement.

The employer argues that this language in the collective agreement brings section 57(2)(c) into) play, and that the Board ought to apply its reasoning in the Canadian Chemical Workers case to find that in spite of the extension of the collective agreement, the initial "open period" survives as well.

8. That subsection, counsel concedes, by its own terms applies only where the extension of the collective agreement has been caused by the default of the parties to give proper notice. That is a matter wholly within the control of the parties themselves, as recognized by the Board in its reasoning in the Canadian Chemical Workers Union case, where the Board continued, also, at paragraph 6:

In our view, an application for certification or termination can be made during the two months immediately preceding the nominal expiry date of the collective agreement even if that agreement provides for its continuation or renewal for a further term. The open period cannot be "closed" or "postponed" by the unilateral action of one of the parties.

That is a different situation entirely from one where the parties' normal ability to bargain has, in advance, been postponed by statute.

9. But counsel argues that the Board ought to "stretch" the language of section 57(2)(c) to make it apply in the case of mandatory extension of the collective agreement by the Inflation Restraint Act, 1982. Even if the Board had the power to do that, the reason put forward by counsel in support of that request is that the inflation Restraint Act, as the respondent conceded, renders the giving of notice to bargain essentially meaningless; in those circumstances, counsel argues, the Board should strain to find that the "open period" continues to exist for the purpose of a termination application. With all due respect to counsel, the Board would have thought that that circumstance pointed in the other direction. In this particular case, incidentally, the Board notes that timely notice to bargain was given by the respondent on April 14, 1983, providing yet another reason why section 572)c), by its terms, cannot apply. The Board's decision does not, however, rest solely upon this factor.

10. The final argument put forward by both the applicant and the employer is that the purported extension of the Inflation Restraint Act, 1982 beyond its stated goal of "restraint of compensation in the public sector", to oust the normal procedures under the Labour Relations Act for the determination of representation questions, renders the Inflation Restraint Act in violation of the Charter of Rights. In this regard counsel point to the following sections of the Charter:

11. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

12. Everyone has the following fundamental freedoms:

(d) freedom of association.

That argument, however, was made and dealt with in the Broadway Manor case. As the Board observed in Broadway Manor, the Labour Relations Act already places what have been considered to be necessary restraints on the right of access to changes in representation, particularly with respect to the timing of such access. In the Board's view, the further impact of the Inflation Relations Act on these already-existing restrictions is not so fundamental as to bring that Act into conflict with the Charter.

11. It might finally be noted that, although not before this panel of the Board at the time that the present application was actually heard, a prior decision of the Board dealing with precisely this point has in fact been issued. In Don Mills Foundation for Senior Citizens,. Board File No. 0049-83-R, released June 20, 1983, the Board wrote:

12. This is an application for termination of the respondent union's bargaining rights made pursuant to section 57(2) of the Labour Relations Act. Section 57(2)(a) provides that such application can only be made "after the commencement of the last two months" of operation of the collective agreement between the respondent union and the employer intervener. That agreement, by its terms, would expire on March 31, 1983 and this application for termination of bargaining rights was filed on April 20, 1983. Accordingly, looking only at the terms of the collective agreement and the Labour Relations Act, this application would be timely.

13. But it is not. While the collective agreement was in operation, the Legislature passed Bill 179, the Inflation Restraint Act, 1982. One of the features of that legislation was a statutory extension of the term of operation of existing public sector collective agreements. It is not disputed that the Senior Citizens facility where the applicant works is subject to this legislation. Accordingly, the collective agreement extension provided for in the Inflation Restraint Act, 1982 has the indirect effect of postponing the applicant's right to seek termination of the respondent's bargaining rights because such application can only be made during the last two months which the collective agreement continues to operate and this "open period" will have to be calculated with reference to the new end point caused by the statutory extension of the agreement's term of operation. The statutory language which produces this result was exhaustively examined in the Board's decision in Broadway Manor Nursing Home, Board File No. 1559-82-R, decision dated January 3, 1983, as yet unreported, and need not be repeated here. It suffices to say that the scheme which the Legislature has created under the Inflation Restraint Act, 1982 has the effect of preventing this application from being considered at this time. The Board has determined, therefore, that, in accordance with its usual practice in respect of untimely termination applications, the present application must be dismissed.

14. For the reasons given, the present application must be dismissed as well.