Alexandra Eadie v. Canadian Union of Public Employees, 1983 CanLII 985

[1983] OLRB Rep. February 227

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 Members W. H. Wightman and Stewart Cooke.

APPEARANCES: Alexandra Eadie on her own behalf~ G. Brian Atkinson and George Main got for the respondent; Brian R. Gatien, Paul A. Big gin and Patricia Crowley for the intervener.

DECISION OF THE BOARD; February 4, 1983

1. This is an application for a declaration terminating bargaining rights. Because of the employer is a "hospital" governed by the provisions of the Hospital Labour Disputes Arbitration Act, the timeliness of this application must be determined with regard to section 12(1) of the Act. Section 12(1) provides:

Notwithstanding section 61 of the Labour Relations Act, where a trade union that has been certified as bargaining agent for a bargaining unit of employees of a hospital has given to the employer of such employees notice under section 14 of that Act and the Minister has appointed a conciliation officer, an application for a declaration that the trade union no longer represents the employees in the bargaining unit determined in the certificate may be made only in accordance with subsection 57(2) of the Labour Relations Act.

Section 57(2) of the Labour Relations Act provides:

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in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,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

2. The facts material to the issue before us are not in dispute. The respondent Local 1474 was certified by the Board for the Hospital's "clerical" employees on December 23, 1981. The respondent then on January 26, 1982, served the Hospital with the notice to bargain, pursuant to the provisions of section 14 of the Labour Relations Act (which applies to these parties except as modified by the Hospital Labour Disputes Arbitration Act). The parties held a couple of meetings in the spring, resulting in the implementation of some interim changes in working conditions, but did not reach a collective agreement.

3. Local 1474 also holds bargaining rights for the "service" employees of this Hospital, and the most recent collective agreement covering that group had an expiry date of September 29, 1982. Local 1474 accordingly served notice to bargain with respect to the "service" group on June 29, 1982. From that point it was agreed by Local 1474 and the Hospital that negotiations for both units could best be carried out on a joint basis (although the collective agreements to be ultimately signed would remain separate).

4. The other relevant development was that in July of 1982, the Canadian Union of Public Employees and its affected Locals entered into a Memorandum of Agreement with certain "Participating Hospitals" to refer certain specified issues to "central" bargaining, and to remove those issues entirely from the ambit of local negotiations. The Doctors Hospital was one of those "Participating Hospitals", and both its "clerical" and its "service" units are spelled out in the Memorandum as being included. Paragraph one of the Memorandum provided:

The issues for central bargaining shall be determined by the Central Negotiating Committees and may include but shall not go beyond those set out in Appendix "D" attached hereto.

The list in Appendix "D" included:

Purpose No Discrimination Strikes and Lockouts Union Security

Union Representations

Grievance Procedure

Discharge, Suspension and

Discipline

Seniority

Hours of Work

Shift Premium

Vacations

Leave of Absence

Health and Welfare Benefits

Workload

Superior Benefits

Part-time Employees

Labour Management Committee

Arbitration

Job Security

Promotions

Overtime

Paid Holidays

Sick Leave

Payment of Wages

Health and Safety

Previously Agreed Standard

Clauses

Term

Paragraph 1 went on to provide:

Apart from the negotiations conducted between the two Central Negotiating Committees, there shall be no bargaining by the Local Unions with any Participating Hospital or Hospitals with respect to any central issue and any agreement on any central issues arising from any unauthorized bargaining shall be null and void.

Paragraph 2 also provided:

All issues other than those identified by the parties as central issues will be considered local issues and negotiated between each Local Union and each Hospital.

5. The local committees for The Doctors Hospital met on September 7, 1982, and their negotiations culminated in the drafting of a Memorandum of Settlement with respect to all "local" issues in dispute. This Memorandum remained subject to ratification by the two parties prior to execution. The Hospital asserts that the effect of ratification and execution of this document would have been to "sign off' all "local" issues, although no collective agreement would have been reached until negotiation of the "central bargaining" issues had been completed and ratified. What in fact occurred, at that point, however, is that the introduction of Bill 179 (the Inflation Restraint Act, 1982) was announced in the Legislature, and Local 1474 pulled back from ratifying the Memorandum on "local" issues.

6. Nothing more then happened at the local level with respect to negotiations for the two bargaining units which Local 1474 represented at The Doctors Hospital. What activity there was took place at the "central" level, and it appears that a joint application for the appointment of a conciliation officer was made for all of the "Participating Hospitals" at that stage. The Ministry of Labour granted the appointment by letter dated September 29, 1982. That letter reads:

September 29, 1982

File No. 82-1355

Ontario Hospital Association,

150 Ferrand Drive,

Don Mills, Ontario

M3C 3E5

Attention: Mr. Allan Shakes

Re: The Labour Relations Act; and

The Participating Hospitals; and Canadian Union of Public

Employees on its own behalf and on behalf of each of its Local

Unions.

Conciliation Officer: Mr. F. D. Kean

Dear Sir:

I wish to advise that the Minister of Labour has appointed the above-named as Conciliation Officer to confer with the parties and to endeavor to effect a collective agreement between them.

It should be noted that a Bill was introduced in the Legislature on September 21st respecting the Restraint of Compensation in the Public Sector which, if enacted, may affect rights and obligations of the parties under the Labour Relations Act and, in particular, the continuation of this conciliation proceeding.

Yours very truly,

T. E. Armstrong, Q.C.

Deputy Minister

/ff

Once again, there is no dispute that The Doctors Hospital was one of the "Participating Hospitals" covered by that appointment. Central negotiations continued until mid-December, when Bill 179 was actually passed by the Legislature, and the parties adjourned to assess its impact. On December 29, 1982, the present application was filed by Alexandra Eadie, an employee in the bargaining unit, to terminate the respondent's "clerical" bargaining rights. The only other fact which the Hospital puts forward as relevant is that subsequent to this, the central bargaining committees met on three occasions without the assistance of the conciliation officer, and entered into a final Memorandum of Settlement.

7. To understand the issues in this case, it is important to recognize that, absent any impact from Bill 179, the present application would be clearly untimely. Under the collective bargaining scheme established for "hospitals" under the Hospital Labour Disputes Arbitration Act, the appointment of a conciliation officer following the initial certification of a trade union ousts any termination application until the last two months of the parties' first collective agreement. Given the absence of the right to strike, in other words, the Act specifically contemplates at least one collective agreement before a termination application may be brought. As the Board observed in Birchcliff Nursing Home, [1975] OLRB Rep. April 384:

8. The effect of section 9 [now 12] is that where, following certification and notice under section 13 [now 14] of The Labour Relations Act, a conciliation officer is appointed, an application for termination of bargaining rights can only be made in the open period of the collective agreement which is subsequently concluded. Pursuant to the provisions of The Hospital Labour Disputes Arbitra­tion Act.

9. The entitlement to apply under section 53(1) [now 61(1)] of The Labour Relations Act for a declaration terminating bargaining rights following certification, and before a collective agreement is concluded, is quite different. Under section 53(1) [now 61(1)1 such an application may be made following the exhaustion of conciliation procedures — more precisely, after conciliation has been concluded and the time limits stipulated under sections 59(1) (a), (b) or (c), [should have read 53(1); should now read 61(1)] as the case may be, have elapsed. However, in the case of a "hospital" within the meaning of The Hospital Labour Disputes Arbitration Act, where the right to strike (or lock out) has been replaced by compulsory arbitration, the appointment of a conciliation officer operates to bar an application for termination until the conditions stipulated in section 49(2) [now 57(2)] of The Labour Relations Act have been met: i.e., until a collective agreement has been concluded, and then only within the open period (as set out in sections 49(2) (a), (b) or (c), [now 57(2)] as the case may be) of that collective agreement.

Similarly, see Nel Gor Castle Nursing Home, [1979] OLRB Rep. Oct. 1013.

8. There is no question that in this case a conciliation officer has been appointed. Counsel for the Hospital argues, however, that the passage of Bill 179 alters the situation. He points to the fact that the appointment of the conciliation officer was, in his words, made "subject to Bill 179", and that the Inflation Restraint Act itself, by virtue of section 36, is "deemed" to have come into force on the 21st day of September, 1982. In particular, counsel relies on the provisions of section 15 of that Act, which provides:

The parties to a collective agreement that includes a compensation plan that is extended under section 11 may, by agreement, amend any terms and conditions of the collective agreement other than compensation rates or other terms and conditions of the compensa­tion plan.

Counsel points to the fact that amendments under that section may only take place "by agreement". Since it is disagreement which gives rise to the need for conciliation, he argues, the logical inference from this section is that the Ministry's conciliation services no longer have a role to play under the Inflation Restraint Act, and are rendered void. If the parties are not able to "agree" on changes, nothing remains except the legislated compensation-rate increases provided by the Act, or resort to the Inflation Restraint Board for a ruling. The normal rights of strike, lock-out, or interest arbitration (together with conciliation services themselves) he argues are abrogated entirely by the new statute. And when the Act was given retroactive effect to the date September 21, 1982, counsel concludes, it had the effect of vitiating or cancelling the officer's appointment which took place on September 29th.

9. Counsel submits that the view he takes of the Inflation Restraint Act is reinforced by the opening words of section 8(1). Section 8(1) provides:

Notwithstanding any other Act, except the Human Rights Code, 1981, and section 33 of the Employment Standards Act, every compensation plan that is in effect on the 21st day of September, 1982, shall be continued without change to and including its scheduled expiry date.

(emphasis added)

The Board notes, however, that those words have no impact where there is no incompatibility between the Inflation Restraint Act and "any other Act" of the Legislature. Counsel's argument must be considered further, therefore, in order to determine whether any such incompatibility exists in this case.

10. The Inflation Restraint Act by its terms sets, for a limited period of time, statutory restraints on the levels of compensation increase to be afforded a wide variety of employees in the public sector. The Board was called upon to consider for the first time the impact of that Act, and its relationship to existing collective bargaining statutes, in the recent unreported decision in Broadway Manor Nursing Home, and Fiddick's Nursing Home Limited, [1983] OLRB Rep. Jan. 26. The Board stated:

11. ... we accept the submissions of the applicants that every effort should be made to interpret Bill 179 in a manner which does not interfere with the rights of employees under the Labour Rela­tions Act. The Labour Relations Act establishes procedures whereby employees may select and be represented by a trade union of their choice, bargain collectively with their employer through their duly certified bargaining agent, and, at certain prescribed times, resort to economic sanctions against their employer in support of impro­ved terms and conditions of employment, or, if covered by the Hospital Labour Disputes Arbitration Act, apply for the appointment of an arbitrator. The rights established under the Labour Relations Act and the Hospital Labour Disputes Arbitration Act ought not to be interfered with by the operation of another statute unless it is manifestly clear on a reading of the other statute that such a result is intended. Even if we accept, as clearly we must on a reading of Bill 179, that compensation is to be regulated during the period of its operation, it does not necessarily follow that Bill 179 abridges the right of employees under the Labour Relations Act to choose a bargaining agent at the times prescribed in the Labour Relations Act or to bargain collectively in respect of non-compensa­tion matters. This tribunal, with its special expertise in labour relations, recognizes the importance of non-compensation terms and conditions of employment such as seniority, layoff and recall (especially in a time of recession), health and safety, grievance procedure and management rights. Notwithstanding the regulation of compensation, meaningful and substantial collective bargaining is nevertheless possible. We begin our analysis of the statutory lan­guage of Bill 179, therefore, from the perspective that, where the purpose of the Bill is to restrain compensation and where there is no language in the Bill expressly abridging the right of employees to choose a bargaining agent, to request conciliation or to engage in a legal strike under the Labour Relations Act, every effort should be made to harmonize the two statutes so as to preserve intact as much of the Labour Relations Act as is possible.

(emphasis added)

The Board was there faced with the impact of Bill 179 on negotiations for the renewal of a collective agreement, and more specifically, whether Bill 179 has the effect of extending the term of the collective agreement. At issue was the timeliness of an application for certification filed to displace the incumbent trade union. The "open period" provided for in section 5(4) of the Labour Relations Act for the filing of such applications begins with "the last two months of the collective agreement", so that if by operation of Bill 179 the collective agreement is extended, the "open period" would be deferred. The expiry date of the collective agreement is, of course, also the reference point for the giving of notice to compel bargaining for renewal of the collective agreement under section 53 of the Labour Relations Act, which in turn triggers the right to request the appointment of a conciliation officer under the Act. (See section 16 of the Labour Relations Act.) The Board in Broadway Manor and Fiddick's Nursing Home, supra, went on to note as a practical matter:

22. ... It is important, for purposes of interpreting the relevant provisions of Bill 179, to recognize the strong nexus between representation rights and collective bargaining under the Labour Relations Act and the manner in which representation rights, collective bargaining and the right to resort to economic sanctions fit together as part of an integrated whole. Notwithstanding our natural attraction to the interpretation of Bill 179 advanced by the applicants, there would be little point in straining the language of the Bill to preserve the open periods provided under the Labour Relations Act if the Bill could not also be interpreted as preserving some form of meaningful collective bargaining.

23. Section 13 of the Inflation Restraint Act reads:

Notwithstanding any other Act except the Human Rights Code, 1981 and section 33 of the Employment Standards Act, but subject to section 14, the terms and conditions of,

(a) every compensation plan that is extended or made subject to this Part under section 9 or 11; and

(b) every collective agreement that includes such a compensation plan,

shall, subject to this Part, continue in force without change for the period for which the compensation plan is extended or made subject to this Part.

And section 15, quoted earlier, provides:

The parties to a collective agreement that includes a compensation plan that is extended under section 11 may, by agreement, amend any terms and conditions of the collective agreement other than compensation rates or other terms and conditions of the compensa­tion plan.

The Board in Broadway Manor and Fiddick's Nursing Home ultimately concluded:

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 of the operation of a 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"...

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 Act.

31. That, however, was a "renewal" situation. Critical to the Board's determina­tion in that case, and to the Hospital's argument in the present one, is the interpretation of section 15 of the Inflation Restraint Act. But that section speaks of "the parties to a collective agreement", and to amending any of the terms and conditions "of the collective agreement". It is simply not possible to bring the present situation of bargaining for a first agreement within the ambit of that section. And counsel for the Hospital could point to no other section in the Inflation Restraint Act which creates a necessary conflict between that Act and the normal procedures available to collective-bargaining parties under the provisions of the Labour Relations Act or the Hospital Labour Disputes Arbitration Act. Section 13(b), for example, which provides for the continuance of the terms and conditions of "collective agreements", once again has no application to first-contract bargaining, and that subsection therefore raises no conflict with the normal rights available to parties in a first-contract situation. It is true that under section 13(a), the terms and conditions of "compensation plans" are extended and controlled, but there is nothing on the face of that stipulation which would cause one to conclude that normal collective bargaining is ousted. Obviously the substance of those negotiations may be affected by the restraints placed on "compensation" increases by the statute, but it in no way follows from that that any remaining scope for collective bargaining would be superfluous. We repeat once again the words of the Board in Broadway Manor and Fiddick's Nursing Home, where the Board in paragraph 21 stated:

... This tribunal, with its special expertise in labour relations, recognizes the importance of non-compensation terms and condi­tions of employment such as seniority, layoff and recall (especially in a time of recession), health and safety, grievance procedure and management rights. Notwithstanding the regulation of compensa­tion, meaningful and substantial collective bargaining is neverthe­less possible.

And beyond that, section 12(l)(d) (in contrast to section 12(l)(c) which fixes the level of compensation increase under existing collective agreements) provides for compensa­tion rates to be increased:

(d) in any other case, "by not more than 5 per cent".

While the primary thrust of this subsection would appear to be directed at unorganized groups of employees, its effect for first-contract situations is that not even the issue of "compensation" increases are entirely removed from the scope of bargaining. There are, therefore, a host of matters left to be bargained about in a first-contract situation, and we find that the Legislature has left the parties' avenues for doing so virtually intact.

13. In conclusion, therefore, we find that for the consummation of "first" collective agreements, the normal rights and obligations arising under either the Labour Relations Act or the Hospital Labour Disputes Arbitration Act are unaffected by the passage of the Inflation Restraint Act, 1982, except insofar as that latter Act places a ceiling on the level of "compensation" increases. This means, for example, that conciliation services remain available at the request of a party under section 16(1) of the Labour Relations Act, together with the normal rights to strike, lock-out, or, in the case of a "hospital" resort to third-party interest arbitration. In this regard, section 3 of the Hospital Labour Disputes Arbitration Act provides:

14. Where the Minister has informed the parties that the concili­ation officer has been unable to effect a collective agreement, the matters in dispute between the parties shall be decided by arbitra­tion in accordance with this Act.

15. This result for first agreements may, at first glance, appear inconsistent with the result the Board was forced to arrive at in Broadway Manor and Fiddick's Nursing Home, supra. But in "renewal" situations such as the latter cases, it must be borne in mind that the parties already have in place a large assortment of collectively-bargained conditions to provide a legal framework for the work place, and in those circum­stances, it is less striking to find that the parties have been asked by the Legislature to live with those conditions (unless they agree otherwise) for the further period stipulated by the Inflation Restraint Act. No such framework exists in the context of negotiations for a first agreement.

16. As noted in the cases cited earlier, if this were a case involving parties who are subject only to the provisions of the Labour Relations Act, the appointment of a conciliation officer would only defer termination or displacement applications until the conciliation process had been exhausted. See sections 57(1) and 61(1) of the Labour Relations Act. But in the "hospitals" context, the appointment bars a termination application at least until the end of the first collective agreement (whenever, under the provisions of the Inflation Restraint Act, that may be). And in this case there indisputably was a conciliation officer appointed. How does counsel for the Hospital get around that?

17. The argument put forward, once again, is that the appointment of an officer for The Doctors Hospital's clerical unit was part and parcel of the appointment for all of the units being combined for the purpose of central bargaining, most of which units were involved in negotiations for the renewal of existing collective agreements. And when, by operation of law, conciliation was abrogated or cancelled for those units by the passage, retroactively of Bill 179, conciliation for The Doctors Hospital's clerical unit was abrogated as well; the appointment of a conciliation officer not having been made for The Doctors Hospital standing alone, counsel argues, it could not continue in effect by itself once the appointment, as it affected the remainder of the hospitals, ceased to exist.

18. The Board does not agree. To begin with, the agreement for joint bargaining did not create a single bargaining unit for which the agreement which the appointment of a conciliation officer was made. There is no question but that at the end of the central negotiations, individual collective agreements for each hospital would be the product. There were simply two parts to each Hospital's final collective agreement, one made up of the issues designated as "central", and the other of issues which were solely local. As the Memorandum on Joint Bargaining provided:

... all provisions not included in the attached Appendix "D" [i.e. "central" issues], whether or not such provisions are altered in the above noted local negotiations, shall form a separate appendix to the Central Agreement at each Hospital and the two documents shall together constitute the Collective Agreement at each Hospital.

Assuming that subsequent "cancellation" of the appointment would provide a way around the words "and the Minister has appointed a conciliation officer" in section 12(1) of the Hospital Labour Disputes Arbitration Act, that cancellation could only have occurred by operation of law: the Minister himself issued nothing to cancel or withdraw the original appointment. And even assuming that the Board's findings in Broadway Manor and Fiddick's Nursing Home would cause the Board to conclude that the Inflation Restraint Act cancelled the original appointment of the conciliation officer (because he had become redundant) for all of the bargaining units in negotiations for the renewal of their collective agreements, no basis whatsoever would exist for finding that the Act must have operated in the same way with respect to ''first agreement'' situations like the present. On the contrary, for the reasons given above, the applicability of conciliation services would clearly remain and there is simply no basis on which to conclude that by operation of law the appointment of the conciliation officer would not (and did not) continue. Whether, after Bill 179, negotiations for The Doctors Hospital were completed through the agency of central bargaining (as in fact they were), or whether a collapse in central bargaining had forced the Hospital to work out the so-called "central" issues on its own, we find that the "clerical" bargaining unit continued to have a conciliation officer in place, for whatever extent his assistance was requested or required to complete the outstanding issues.

18. The Board notes further that the Ministry's letter appointing the conciliation officer did not, as argued, make the appointment "subject to Bill 179", in the sense of being made conditional on the question of its passage. Rather, it simply put the parties on notice that a Bill had been introduced in the Legislature which, "if enacted, may affect rights and obligations of the parties under the Labour Relations Act and, in particular, the continuation of this conciliation proceeding" (emphasis added). As the Board has now determined in the two cases before it, the rights and obligations of parties under the Labour Relations Act (and the applicability of conciliation services) are affected by the Inflation Restraint Act in bargaining units dealing with the "renewal" of a collective agreement, but are essentially not affected in bargaining units dealing with negotiations for a first agreement. The present case deals, of course, with the latter.

19. In conclusion, the Board finds that notice to bargain has been given by the respondent pursuant to the provisions of section 14 of the Labour Relations Act, that the Minister "has appointed a conciliation officer", and that the present application, filed prior to the last two months of the first collective agreement, is, pursuant to section 12(1) of the Hospital Labour Disputes Arbitration Act, untimely.

20. The application is accordingly dismissed.

DECISION OF BOARD MEMBER W. H. WIGHTMAN;

1. This case demonstrates that, while the Inflation Restraint Act places limita­tions on monetary increases, it does not foreclose on the ability to organize, to negotiate a first agreement and, if need be, to resort to strike or lock-out or, as in this case, interest arbitration in order to arrive at a first collective agreement.

2. No matter how one may view the Inflation Restraint Act, as to its need and appropriateness, neither employer nor union members of the Board can be comfortable with the suspension of rights, however temporary that suspension may be.

3. Nevertheless I am of the view that it is not for the Ontario Labour Relations Board to pass judgment on decisions of the Legislature, but, rather, to make findings in the light of existing legislation. It is in this spirit that I fully concur with the decision.