Danver Ambulance Service Inc. v. Ontario Public Service Employees Union, 1985 CanLII 982

[1985] OLRB Rep. June 833

3070-84-M Danver Ambulance Service Inc., Employer, v. Ontario Public Service Employees Union, Trade Union

BEFORE: S. A. Tacon, Vice-Chairman, and Board Members W H. Wightman and P. V. Grasso.

APPEARANCES: Mark Contini, Dan McArthur and Verna McArthur for the employer; Linda R. Rothstein, Jim McConachie and Jaqueline Gardner for the trade union.

DECISION OF S. A. TACON, VICE-CHAIRMAN, AND BOARD MEMBER W. H. WIGHTMAN; June 18, 1985

1. This is a reference pursuant to section 107 of the Labour Relations Act wherein the Minister seeks the opinion of the Board as to whether he has the authority to appoint a Conciliation Officer.

2. The parties agreed on the relevant facts as follows:

(a) The union was certified as bargaining agent on January 19, 1983.

(b) Negotiations for the 1983-4 collective agreement were held: in 1983 on August 12, September 2, October 13, November 4; in 1984, on February 9 and May 8; for the latter two meetings, the parties were at conciliation.

(c) The union initially sought a fifteen month contract while the employer wished a twelve month contract corresponding with his fiscal year of April 1 to March 31. Both parties were agreed that the expiry date of the collective agreement should be March 31, 1984 however.

(d) The parties entered into a collective agreement on May 28, 1984 for a one year term, from April 1, 1983 to March 31, 1984. That is, the 1983-84 collective agreement had already expired as of the date it was concluded. The parties noted that the collective agreement referred to April 15 as the date of commencement of the contract but agreed this was an error and April 1 was the actual date the collective agreement commenced operation.

(e) The collective agreement was formally executed in August 1984; the union had forwarded copies in June 22, 1984 signed by the appropriate union officials and the company president, Dan McArthur, affixed his signature on August 17, 1984.

(f) Peter Monsen, the accountant for the employer, acted as company negotiator for the 1983-4 collective agreement.

(g) By letter dated October 29, 1984, Jackie Gardner, union staff representative, notified Dan McArthur, "pursuant to Article 21 of the collective agreement" (to quote from the letter), of an intention to bargain amendments to the collective agreement which had expired on March 31, 1984. Prior to this letter there had been no written or verbal communication to the employer regarding an intention to bargain in respect of a 1984-5 collective agreement.

(h) In November 1984, Gardner twice contacted McArthur by telephone to obtain negotiating dates. In these conversations, McArthur did not object to the October 29 notice as untimely but did state that he would contact Monsen to arrange free dates for the parties to meet.

(i) In December 1984, Monsen contacted Gardner by telephone. Monsen asked if the union would be willing to negotiate the 1984-5 and 1985-6 collective agreement together and, if so, the employer was prepared to give a 5% wage increase automatically in respect of 1984-5 to bargaining unit employees. Monsen did not raise the issue of the timeliness of the notice to bargain. Gardner refused Monsen's offer and advised him that there were issues other than wages to be dealt with in the 1984-5 collective agreement. Monsen replied that he would speak to his client and get back to Gardner.

(j) When Monsen had not contacted (Gardner by January 15, 1985, the union applied for conciliation.

3. To complete the chronology:

(i) On January 17, 1985, the Minister received the union's request for the appointment of a conciliation officer under section 16 of the Act;

(ii) On January 22, 1985, the employer's objection to the appointment was received;

(iii) On February 7, 1985, the union's response to the objection, again requesting the appointment of a conciliation officer was received.

4. The reference to the Board by the Minister is:

"Briefly stated, the question is whether or not the trade union's failure to give timely notice to bargain has resulted in the extension of the collective agreement for an additional twelve months past its expiry date of March 31, 1984."

5. Counsel for the employer asserted that the union had not complied with the notice

provisions in Article 21 of the 1983-4 collective agreement and, therefore, in accordance with Article 21.01, that collective agreement had been continued for 1984-85. As the notice provisions in the collective agreement were the same as in section 53(1) of the Act, the union had not given timely notice to bargain under the statute either. Counsel submitted that the provisions of section 53(1) could not be abridged or extended by the parties except in accordance with section 53(2). Counsel referred to Otto's Deli, [1980] OLRB Rep. Nov. 1673 in support. The fact that the 1983-4 collective agreement had expired in accordance with its terms on the date the agreement was concluded (on May 28, 1984) was irrelevant in that the parties could have negotiated language to deal specifically with notice in respect of the 1984-5 collective agreement and, thereby, provided an alternative route for timely notice, as permitted by section 53(2), in lieu of the section 53(1) provision. Consequently, counsel argued that the October 29th letter did not constitute timely notice under the Act. Further, the telephone calls in November and December, it was asserted, fell far short of the standard in section 16(2), i.e., that the parties "met and bargained"; counsel referred to Dryden 5' to $1.00 Store Limited, [1974] OLRB Rep. May 303. In summary, counsel asserted a conciliation officer should not be appointed.

6. Counsel for the union submitted that the Board should find, from the signing of a collective agreement on a date post its expiry, that the employer had waived his right to object to the timeliness of the notice to bargain, or, that the collective agreement be interpreted so as to give effect to the reasonable expectation of the parties that they would negotiate for the 1984-5 collective agreement. Counsel argued that the fact that the employer did not indicate that the union was precluded from negotiating for the 1984-5 contract entitled the union to negotiate that contract notwithstanding the provision of Article 21. It was submitted that the notice to bargain on October 29, 1984 was reasonable given the date the collective agreement was actually executed, i.e., August 17, 1984. Moreover, the employer or his representative did not object to the timeliness of the notice in the telephone conversations of November and December and, indeed, had attempted to bargain subsequent to the notice. This conduct, in its entirety, supported the inference that the parties intended to bargain about the terms and conditions of the 1984-5 contract. Counsel also submitted the provisions of section 53(1) were directory, not mandatory; Peel Memorial Hospital, [1977] OLRB Rep. July 452 and Dravo of Canada Limited, [1977] OLRB Rep. Sept. 568 were referred to in support. The directory nature of section 53(1) and the circumstances of the 1983-4 negotiations and the subsequent conduct of the parties, it was contended, enabled the Board to find the notice to bargain on October 29, 1984 constituted notice within the meaning of section 53 of the Act. In the alternative, counsel argued that the Monsen telephone call satisfied the standard in section 16(2) that the parties had "met and bargained." That is "meeting" could include contact by telephone although counsel acknowledged the only case found dealing with the point was a "clear" case of bargaining (Adath Catering Company (A Division of Michael Firestone Services Limited), [1975] OLRB Rep. June 482). Counsel contended Monsen had made an offer to the union in that telephone conversation and the Dryden case, supra, did not preclude the Board finding there had been negotiations, particularly since the offer had not been "without prejudice". In conclusion, then, counsel asserted the Board should find that section 53 notice had been given in the circumstances or, in the alternative, that section 16(2) had been satisfied so that the timeliness question was irrelevant. In either instance, counsel submitted a conciliation officer should be appointed in respect of negotiations for the 1984-5 collective agreement.

7. In reply, counsel for the employer expressed his skepticism at the union's position

that section 16(2) had been satisfied in view of the union's statement on the application for a conciliation officer appointment that the parties had not held any negotiating meetings. Finally, and although not conceding that the Board had a discretion to determine whether there was "53(1)" notice, counsel submitted that the conduct of the union in delaying from May 28th to October 29th in giving notice should not weigh in the union's favour.

8. It is appropriate to set out the relevant sections of the Act at this point:

53.-(1) Either party to a collective agreement may, within the period of ninety days before the agreement ceases to operate, give notice in writing to the other party of its desire to bargain with a view to the renewal, with or without modifications, of the agreement then in operation or to the making of a new agreement.

(2) A notice given by a party to a collective agreement in accordance with provisions in the agreement relating to its termination or renewal shall be deemed to comply with subsection (1).

16.-(1) Where notice has been given under section 14 or 53, the Minister, upon the request of either party, shall appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement.

(2) Notwithstanding the failure of a trade union to give written notice under section 14 or the failure to either party to give written notice under sections 53 and 122, where the parties have met and bargained, the Minister, upon the request of either party, may appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement.

9. It is also useful to set out the provisions in the collective agreement regarding its duration:

21.01 Except where otherwise provided, this agreement shall be binding and remain in effect from April 15, [sic] [should read April 111983 to March 31, 1984, and shall continue from year to year thereafter unless either party gives the other party notice in writing within the ninety (90) day period prior to the termination of the agreement that it desires its termination or amendment.

21.02 Either party desiring to propose changes to this agreement shall, within ninety (90) days prior to the termination date, give notice in writing of the desire to propose changes.

10. Section 53 deals with the manner and timing of giving notice to bargain for a new collective agreement. Simply put, section 53(1) establishes the notice period as the last ninety days prior to the expiry of the collective agreement. Section 5 3(2) enables the parties to incorporate notice provisions in their collective agreement and deems compliance with those provisions constitutes compliance with section 53(1). The parties, however, cannot avoid or abridge the substantive right contained in section 53(1) by their agreement on provisions regarding notice in the collective agreement: see Otto 's Deli, supra.

11. The Board agrees with the submission of counsel for the union that the provisions of section 53(1) are directory, not mandatory: see Dravo of Canada Limited, supra; Peel Memorial Hospital, supra. However, the Board is also of the view that whether notice which apparently falls outside the period prescribed in section 53(1) constitutes notice within the meaning of section 53(1) is limited by, at least., the terms of the collective agreement itself and the timing of the notice. It is one thing to find that, in the circumstances, early notice (i.e., notice given prior to the last ninety day period before the expiry of the collective agreement) constitutes notice within the meaning of section 53(1). It is quite another matter where notice is given after the expiry of the collective agreement. In the latter case, the provisions of the "expired" collective agreement are critical. That is, where the collective agreement contains no provision for its "automatic" renewal if timely notice is not given, the Board may still find that such "late" notice constitutes notice within the meaning of section 53(1) of the Act. Such a finding will, of course, depend on the factual context of that particular case, including relevant labour relations considerations. Where there is provision for automatic renewal of the collective agreement where timely notice to bargain is not given, the Board is of the opinion that "late" notice, given after expiry of the collective agreement and, therefore, after the collective agreement has been automatically renewed for a further period of at least one year, cannot constitute notice within the meaning of section 53(1). To hold otherwise would be to permit "bargaining", with the possibility of economic sanction, about the terms and conditions of a collective agreement which has already commenced operation. Such "mid-term" economic sanctions are, of course, prohibited under section 72 of the Act.

12. Thus, the interpretation of section 53(1) urged by union counsel conflicts with the statutory scheme for the negotiation of collective agreements and is not supported by the cases cited. For example, in Dravo of Canada Limited, supra, the collective agreement did not contain a provision for its automatic renewal. Thus, while the notice was unusually "late", there was no collective agreement in operation. In the circumstances, also quite unusual, the Board found the notice to bargain was notice within the meaning of [now] section 53(1); (see also: Sudbury Paint and Wallpaper Co. Ltd., [1964] OLRB Rep. Apr. 48). In Backstay Standard Co. Ltd., 46 CLLC 16,462, notice was given prior to the expiry of the collective agreement, albeit not with ten clear days' notice, and is, thus, readily distinguishable. The decision in Re Lincoln County of Roman Catholic Separate School Board and Buchler, 1972 CanLII 600 (ON CA), [1972] 1 O.R. 854 (Ont. C.A.) is also not of assistance as the failure to comply with the appointment period did not trigger anything comparable to the renewal of a collective agreement. Finally, the Board does not regard the decision in Peel Memorial Hospital, supra, as establishing a right to give notice after the expiry of the collective agreement where that collective agreement contains an automatic renewal clause. The Board in Peel was faced with a unique situation, the impact of a roll-back by the A.I.B. in a collective agreement. Paragraph 23 of that decision underscores the contrast between the "normal" situation and the circumstances of a potential roll-back in the context of the statutory provisions as to notice to bargain:

13. Under normal circumstances the parties to a collective agreement are well aware of the agreement's termination date. Prior to the termination, therefore, either party can give the other notice of its desire to bargain. In the rollback situation neither party to the agreement is able to know at any time prior to the rollback that their agreement will be rolled back and rendered void. In a rollback situation, therefore, it is impossible for either party to give notice to bargain during the time set out in section 45, that is, ninety days prior to the termination of the agreement.

14. Counsel for the union argued that the signing of a collective agreement after the date on which it would have expired in accordance with its terms plus the failure of the employer to object to the timeliness of the notice following October supported a reasonable inference that the parties intended to negotiate the 1984-5 collective agreement. The Board does not agree. The language of Article 21 regarding the renewal of the collective agreement is clear and unambiguous. Although probably infrequent, it is not unheard of for parties to settle a contract after its stipulated term. The parties could have dealt with the issue of negotiations for the 1984-5 contract through specific language or by simply not including the automatic renewal provision. The latter approach would have kept open the possibility of "late" notice as stated earlier. In the circumstances, however, the parties must live with the consequences of their bargain, even if regretted or unintended: see Universal Handling Equipment Company Limited, 111979] OLRB Rep. Apr. 356, particularly at paragraphs 12, 13. Further the Board does not consider that, in the evidence, there was constructive notice to bargain the 1984-5 collective agreement given by the union during the bargaining of the 1983-4 contract: see Owen Sound General and Marine Hospital, 111978] OLRB Rep. Aug. 759.

15. The Board does have concerns, from a policy viewpoint, as also raised in the dissent of Board Member Gras so, about a collective agreement which "expires" according to its terms on the date on which it is signed. However, the Board would note that the consequence of finding that the collective agreement is not "in operation" so that notice could be given with respect to section 53(1) is that the collective agreement is not "in operation" at all. In that event, either the parties concluded a collective agreement with an indefinite term of operation or they did not conclude a collective agreement. In the first instance, it could be argued that the collective agreement, by virtue of section 52(1), was deemed to have a term of one year. However that collective agreement would necessarily include the automatic renewal provision and, thus, the Board's analysis would lead to the same conclusion that the Minister does not have authority to appoint a conciliation officer (see, paragraph 18 infra). In the alternative, if no collective agreement was ever concluded between the parties, the Minister would still not have authority to appoint a conciliation officer as one had already been appointed and met with the parties on February 9 and May 8, 1984, prior to the "signing" of the "collective agreement". Thus~ while the Board has some concerns, as noted, the Board does not regard the above analytical approach as leading to a different conclusion.

16. Even if the Board could properly find that notice given after the expiration of a collective agreement and its automatic renewal is notice within section 53(1) (which is seriously doubted), the Board would not find that notice to bargain has been given in this case. Apart from the Dravo case, the decisions seem to suggest a brief delay in giving notice might not be fatal (see Backstay supra). However, in this case, the delay was lengthy (until October 29, 1984), months after the expiry date. The union counsel asserted the "reasonable" period should run only from the date of formal execution of the collective agreement, i.e. August 17, 1985. Firstly, the Board does not agree that notice needed to await the formal execution of the 1983-84 collective agreement. In any event, though, the union did nothing until October 29th. The union offered no explanation whatsoever for this continued delay in giving notice, a period well in excess of the "few days" referred to in Backstay, supra. Finally, the acceptance of the lengthy delay in Dravo, supra, turned on labour relations considerations not paralleled in the instant case. Thus, if union counsel is correct in the assertion that the Board has a discretion to find the notice given in October complies with section 53(1) of the Act, the Board, in view of the considerable and inexcusable delay, would not exercise its discretion in this case.

17. The Board must still examine the conduct of the parties in the late Fall of 1984 in the context of section 16(2) of the Act. The Board rejects the union's assertion that the conduct could satisfy the requirements of section 16(2) with respect to negotiations for the 1984-5 contract. Section 16(2) was intended to prevent one party from relying on a technical failure by the other party to give notice where, on the evidence, the parties had actually initiated negotiations. Section 16(2), however, cannot be read so as to provide a vehicle for negotiating the terms of a collective agreement, including its duration and with the possibility of economic sanctions if the parties fail to settle, in respect of a collective agreement which has already commenced operation. Such an interpretation would fly in the face of the section 72 prohibition of mid-term strikes or lockouts.

18. The phrase "met and bargained" in section 16(2) has not been the subject of much comment by the Board. In Adath Catering, supra, the Board found that, on the facts, the parties had satisfied the standard. (Parenthetically, it is appropriate to note that the collective agreement in question had an automatic renewal clause but the parties had initially met and bargained before the expiry of the contract. The parties' conduct post-expiry was found to be consonant with continuation of that bargaining.) Conversely, in Dryden, supra, the Board found the parties had not "met and bargained"; the employer had simply made unilateral and ex gratia offer of an unspecified wage increase (and another item). The Board does not intend to here set out an extensive analysis of the standard in section 16(2). However, the Board is of the view that "met and bargained" need not necessarily involve a "face-to-face" meeting provided a person authorized to bargain for one party tables a clear offer on one or more issues to be negotiated to a person authorized to bargain for another party. In the instant case, Monsen, chief negotiator for the employer, made a monetary proposal to Gardner, the union representative. The Board does not consider that the offer was any less an offer because the contact was via the telephone. Monsen did not place his offer on a "without prejudice" basis. To be sure, it is more usual perhaps for the parties to meet across a bargaining table, often in "teams", and table extensive proposals in writing. As noted, the Board does not consider it appropriate or necessary in this case to set out a definitive statement on the standard in section 16(2). In these, circumstances, though, the Board is of the opinion that the parties met and bargained in December 1984, with respect to the 1985-6 collective agreement. Because the parties' conduct in late Fall 1984 was relied on by the union in its argument, the Board considers it appropriate, although not essential, to include the comments in this paragraph in responding to the Ministerial reference.

19. It is clear that, other than during the "open" period, where there is a binding collective agreement the Minister does not have authority to grant conciliation services under section 16(1): The Religious Hospitallers of Hotel Dieu of St. Joseph of the Diocese of London in Ontario at Windsor, [1974] OLRB Rep. Oct. 739; Canada Forgings, [1983] OLRB Rep. Jan. 50; Universal Handling Equipment Company Limited, [1979] OLRB Rep. Apr. 356; Hickeson-Langs Supply Company, [1978] OLRB Rep. Nov. 996; (cf. Sperry Vickers Division Sperry Inc. Canada, [1983] OLRB Rep. July 1208 where the Board found no collective agreement was in operation as the company offer had been properly withdrawn, in good faith). Thus, for the reasons stated, the Board considers that the Minister does not have authority, pursuant to section 16(1) of the Act, to appoint a conciliation officer with respect to the 1984-5 collective agreement. That agreement was automatically renewed, in accordance with the terms of the 1983-84 contract when the latter contract was entered into in May 1984. In terms of the question put by the Minister, the trade union's failure to give timely notice to bargain did result in the extension of the 1983-84 collective agreement for an additional twelve months past its expiry date of March 31, 1984.

DECISION OF BOARD MEMBER P.V. GRASSO;

1. I dissent from the opinion of the majority. In my opinion the Minister has both the authority and an obligation to appoint a conciliation officer with respect to the 1984-1985 collective agreement.

2. The majority views the collective agreement in question as having been automatically renewed for want of notice to bargain being given, and concludes that notice given after automatic renewal cannot constitute notice under the Act. It is important to note that the collective agreement was completely retrospective in effect. It became operative and ceased operation at the same instant - the moment it was entered. At no time was it an agreement "in operation", and thus under no circumstances could the union have given notice to bargain before the contract ceased operation.

3. Because the automatic renewal clause precluded the giving of notice in the unique circumstances of this case, it is my view that the clause is invalid, and the agreement cannot be taken to have renewed itself. As the majority notes in paragraph 10, the parties "cannot avoid or abridge the substantive right contained in section 53(1) by their agreement on provisions regarding notice in the collective agreement." Although the union could have given notice to bargain for a second contract before the first was entered, there is no requirement that it do so, and its failure to do so cannot weigh against it. Indeed, it would be most unreasonable to expect such action in the context of first-contract negotiations.

4. There is no question that the union could have given notice to bargain for a new contract earlier than it eventually did. The employer did not object to the notice as untimely, however, and in fact contacted the union by telephone in November of 1984, offering an immediate 5% raise in return for a two year deal covering 1984-1985 and 1985-1986. In my view, the only fair inference is that the parties "met and bargained" notwithstanding the union's failure to give timely notice. The majority opinion that the bargaining concerned only the 1985-1986 period is not a finding open to the Board, given paragraph 2(i) of the agreed statement of facts.

5. To sum up, it is my view that the renewal clause is invalid as it operated to preclude the substantive right of the union to give notice to bargain under section 53(1). I find, further, that the parties have met and bargained, and that in these circumstances, section 16(2) empowers the Minister to appoint a conciliation officer. In terms of the question put by the Minister, the trade union's failure to give timely notice to bargain did not result in the extension of the 1983-1984 collective agreement for an additional twelve months past its expiry date of March 31, 1984.