[1983] OLRB Rep. September 1382
1751-83-R Christian Labour Association of Canada, Applicant, v. Marsdale Manor Nursing Home, owned and operated by Versa-Care Limited, Respondent, v. Health, Office & Professional Employees, Division of Local 206, Retail, Commercial & Industrial Union, Chartered by the United Food & Commercial Workers International Union, Intervener
BEFORE: Ian C. Springate, Alternate Chairman, and Board Members 5. 0 'Flynn and I. M. Stamp.
APPEARANCES: W. R. Herridge, Q. C., T. Whelan and H. Beekhuis for the applicant; R. Gordon Spear for the respondent; James R. Thomas for the intervener.
DECISION OF THE BOARD; September 19, 1985
This is an application for certification in which the Christian Labour Association of Canada ("CLAC") is seeking to displace Health, Office & Professional Employees, Division of Local 206, Retail, Commercial & Industrial Union, Chartered by the United Food & Commercial Workers International Union (the "UFCW") as bargaining agent for employees of the respondent.
The application, which was filed on November 1, 1983, requested that the Board conduct a pre-hearing representation vote. Such a vote was conducted on February 22, 1984. At the conclusion of the vote, the ballot box was sealed and none of the ballots counted. The Board postponed consideration of the merits of the application pending the outcome of certain Court proceedings relating to the timeliness of displacement applications for certification involving employees in nursing homes.
The provisions of the Labour Relations Act and the Hospital Labour Disputes Arbitration Act indicate that a displacement certification application with respect to employees of a nursing home can be filed during the last two months of a subsisting collective agreement. At the time of the filing of the instant application, however, there existed an uncertainty as to when it was that collective agreements covering employees in nursing homes actually expired. This uncertainty flowed from section 13 of the Inflation Restraint Act, 1982 which provided as follows:
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,
(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 Act.
In the Broadway Manor Nursing Home case, [1983] OLRB Rep. Jan. 26, the Board concluded that the effect of section 13 of the Inflation Restraint Act had been to extend the operation of a collective agreement and thereby postpone for a year the "open period" during which a displacement certification application could be filed. The Board's decision in the Broadway Manor case was taken on judicial review to the Divisional Court. On October 24, 1983, a majority of that Court concluded that the Board had properly interpreted the effect of section 13 of the Inflation Restraint Act, but because of the freedom of association guaranteed by the Canadian Charter of Rights and Freedoms, the Inflation Restraint Act could not have had the effect of postponing the open period. The matter was then appealed to the Ontario Court of Appeal. On October 22, 1984, that Court determined that both the Board and the Divisional Court had misinterpreted the Inflation Restraint Act, and that the Act did not, in fact, have the effect of actually extending a collective agreement.
We turn now to consider the facts of the instant case. The respondent and the UFCW were parties to a collective agreement which operated from August 1, 1980 until December 31, 1982. On November 3, 1982 the Minister of Labour appointed a conciliation officer to assist the parties to negotiate a new collective agreement. The Inflation Restraint Act received Royal Assent on December 15, 1982. On January 10, 1983 the Minister of Labour, acting on the assumption that the effect of the Act had been to extend the term of the expired collective agreement, purported to revoke the appointment of the conciliation officer. On May 16, 1983, after the Board decision in the Broadway Manor case, the respondent and UFCW entered into a three-page document. The first page, in addition to the signatures of representatives of the parties, stated as follows:
BETWEEN: MARSDALE MANOR NURSING HOME
OWNED & OPERATED BY
VERSA-CARE LIMITED
Hereinafter referred to as "The Employer"
AND
HEALTH, OFFICE & PROFESSIONAL EMPLOYEES, a division of Local 206, chartered by the United Food and Commercial Workers International Union,
Hereinafter referred to as "The Union"
The Parties herein agree that the said Collective Agreement shall include the terms of the previous Collective Agreement which expired on December 31, 1982 and as extended by Bill 179 to December 31, 1983, provided however, that the following amendments are incorporated as mutually agreed to by the above-mentioned parties.
The second and third pages of the document contained a number of provisions amending certain of the non-compensatory articles in the 1980-82 agreement.
It is apparent from the wording of the May 16, 1983 document that when it was entered into, both the respondent and CLAC were under the impression that section 13 of the Inflation Restraint Act had extended the term of the 1980-82 collective agreement, and that they were amending certain of the non-monetary terms of the agreement. If the 1980-82 agreement had, in fact, been extended by the Inflation Restraint Act to December 31, 1983, then the instant application would be a timely application, having been filed within the last two months of the agreement's operation. The judgment of the Court of Appeal in the Broadway Manor case, however, establishes that the Inflation Restraint Act did not extend the term of the 1980-82 collective agreement. What then is the status of the May 16, 1983 document? As a starting point, we would note that at the hearing into this matter, no party contended that the effect of the document was to extend the 1980-82 collective agreement independently of the provisions of the Inflation Restraint Act. Indeed, having regard to section 52 of the Labour Relations Act, which provides that parties can agree to continue the operation of an expired collective agreement only for a period of less than one year while the parties to the agreement are bargaining for its renewal, it is doubtful that the May 16, 1983 document could have legally extended the term of the previous collective agreement in that the extension would have been for a full year and at a time when no negotiations were taking place.
CLAC takes the position that the document of May 16, 1983, was itself a collective agreement which incorporated by reference the provisions of the 1980-82 agreement, subject to the noted changes. This new agreement, contends CLAC, expired on December 31, 1983. If CLAC's position is accepted, this application would be a timely displacement application in that it was filed during the last two months of the agreement's operation. The UFCW, however, takes a different view of the matter. According to the UFCW, the May 16, 1983 document cannot be viewed as a collective agreement, but only an agreement to alter existing non-compensatory terms of employment under section 15 of the Inflation Restraint Act. This being the case, contends the UFCW, there was no collective agreement in operation in 1983 and, accordingly, the 1980-82 agreement must be viewed as the last applicable collective agreement. Because a conciliation officer was appointed on November 3, 1982, when the 1980-82 agreement was about to expire, and because section 61 of the Labour Relations Act provides that no displacement application can be filed until a year has passed since the appointment of a conciliation officer, it is the UFCW's contention that the earliest a displacement application could have been filed was on November 3, 1983. The UFCW further contends that since the instant complaint was filed on November 1, 1983, two days previously, it was untimely. As an alternative position, the UFCW submits that the wording of section 12(2) of the Hospital Labour Disputes Arbitration Act is more restrictive than section 61 of the Labour Relations Act and does not allow any displacement certification application after a conciliation officer has been appointed.
As indicated above, from the wording of the May 16, 1983 document, it is clear that when the UFCW and the respondent entered into it, it was their understanding that the Inflation Restraint Act had the effect of extending the 1980-82 collective agreement, and that it was their intent to amend certain of the non-compensatory articles in the agreement. We now know that their understanding of the effect of the Act was in error. However, there can be no doubt but that both the UFCW and the respondent understood that they would be covered by a collective agreement which would run until December 31, 1983. Indeed, in referring to the document of May 16, 1983 they agreed that .... .the said collective agreement shall include the terms of the previous collective agreement. . ." (emphasis added). The May 16, 1983 document, if viewed as incorporating the terms of the previous agreement as amended, meets the definition of a collective agreement set out in section 1(1)(e) of the Labour Relations Act. In all of the circumstances, it is our opinion that the most reasonable interpretation to be given to the May 16, 1983 document is that it was a separate collective agreement covering the period January 1, 1983 to December 31, 1983. In that the instant application was filed during the last two months of the agreement's operation, it is a timely application.
The final issue to be dealt with relates to the submission by the respondent and the UFCW that, given the time that has passed since the holding of the pre-hearing representation vote in this matter, it would be appropriate for the Board to direct the taking of a new vote. We do not agree. The very purpose of a pre-hearing representation vote is to allow for the canvassing of employee wishes about union representation prior to the delays associated with the litigation of legal issues relating to the application. Given the fact that this matter did not proceed to hearing until after the conclusion of the Court proceedings relating to the Broadway Manor case, the delay has been of exceptional length. Nevertheless, even assuming we have the jurisdiction to do so, we are not prepared to depart from the procedures set down in section 9 of the Labour Relations Act for dealing with pre-hearing representation vote applications. We would also refer to the following reasoning of the Board in Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387 at page 1405, where the Board, when dealing with a somewhat different fact situation, indicated that the mere passage of time should not affect the outcome of a certification application:
However, before considering the petition and counter-petition, we need to deal with the respondent company's position urging that the passage of time since the filing of this application justifies the directing of a representation vote. We cannot agree that a representation vote should be directed on the sole basis of the passage of time since the date of filing of this application for certification. Prior to the interim certification provisions enacted in 1975, the Board experienced many complex applications, that without the intervention of judicial review, took a very long period of time to process differences between the parties. These differences usually centered on the configuration and composition of the bargaining unit. Even today, complex applications for certification involving widespread unfair labour practices or bargaining unit problems can take more than a year to process. If the Board were to accept that the mere passage of time could so fundamentally affect the outcome of an application for certification, an unfairness would be visited on those applicants who, by no fault of their own, become involved in complex and lengthy certification matters. There may also be encouragement for some parties to seek to delay a case in order to achieve this outcome. Clearly, there are equities on both sides of this issue. The turnover in the employer's work force since the date of application is considerable. However, as already noted, the same level of turnover is possible in a lengthy application for certification not involving judicial review. In fact, the statute, by creating the concepts of "application date" and "terminal date", has considered the effects of labour force turnover and recognized that at some point in time the composition of a bargaining unit must be considered frozen to provide a stable basis for the purposes of a certification application. See Fuller's Restaurant, [19801 OLRB Rep. Sept. 1289. Considering the submissions of the parties and the evidence before us, we are of the view that the parties are best put in the position they would have been in had the Board not erred by considering this application as if there had been no passage of time.
Having regard to the foregoing, we direct that the ballots cast in the pre-hearing representation vote now be counted.
The matter is referred to the Registrar.