[1987] OLRB Rep. April 641
2943-86-U Ontario Public Service Employees Union and its Local 565, Complainant v. York-Finch General Hospital, Respondent
BEFORE: Ken Petryshen, Vice-Chair, and Board Members D. A. MacDonald and R. R. Montague.
APPEARANCES: James Hayes, Martin Sarra and Mohamed S. Sabounji for the complainant; C. G. Riggs, M. L. Tims, A. Waldron, G. Bell and A. Schiavello for the respondent.
DECISION OF THE BOARD; April 22, 1987
This is a complaint filed pursuant to section 89 of the Labour Relations Act alleging contraventions of sections 15, 66 and 43 of the Act.
After entertaining the facts and the parties' submissions, and after recessing to consider the matter, the Board made the following oral ruling at the hearing on April 13, 1987:
The parties agreed that this complaint raised a fairly narrow issue for the Board to decide. That issue is whether or not the complainant abandoned its bargaining rights for part-time employees. We note that, although both counsel used the term part-time, neither counsel defined the term with any precision. We are satisfied that the complainant union has abandoned its bargaining rights for part-time employees. Accordingly, the Board declares that the Ontario Public Service Employees Union and its Local 565 abandoned bargaining rights for those part-time employees which they contend are covered by the current collective agreement with the respondent.
The factual context and reasons for the above ruling are as follows.
- The relevant facts were introduced on the agreement of the parties. In 1974, the Board certified the Civil Service Association of Ontario (Inc.), of which the complainant is a successor union, for a bargaining unit of the respondent's employees described as follows:
"all medical laboratory technologists, laboratory assistants, radiology technologists, respiratory technologists, nuclear medicine technologists, electroencephalograph technologists and electrocardiogram technicians employed by the respondent in Metropolitan Toronto save and except Administrative Charge Technologists, persons above the rank of Administrative Charge Technologists, members of the medical and nursing profession, office, clerical, service and other technical staff, students in training and students employed during the school vacation period".
For our purposes, the recognition clause in the most recent collective agreement, as well as in the other collective agreements negotiated since certification, are virtually identical to the bargaining unit description contained in the 1974 certificate. It is agreed that these bargaining unit descriptions make no provision for the exclusion of part-time employees. The formal documents, then, namely the certificate and the successive collective agreements, include part-time employees within their scope. However, the provisions of the collective agreement have never applied to part-time employees. The respondent, with the knowledge of the complainant, has never deducted union dues for part-time employees, nor have any other articles of the collective agreement, such as the seniority clause, the grievance procedure provision, and the health and welfare clauses been applied to part-time employees. The collective agreement specifically notes that the salary schedule applies to full-time employees. This situation has existed from the negotiation of the first collective agreement to the present.
The material before us indicates that at least as early as 1977, representatives of the complainant were aware of the fact that the collective agreement was not being applied to part-time employees. During the negotiation of local issues at that time, the complainant proposed that "permanent part-time personnel" be added to the recognition clause. The respondent did not accept this proposal and it was eventually dropped by the complainant. From 1977 to the present, the material before us reveals that the complainant recognized that the collective agreement was not being applied to part-time employees. At various times, the complainant proposed that the respondent amend the collective agreement to include part-time employees, but without any success. In the most recent set of negotiations, Mr. Sarra, on behalf of the complainant, unsuccessfully attempted to obtain the respondent's agreement to apply the terms of the collective agreement to part-time employees. Until this complaint was filed, the complainant or its predecessor had not taken any steps to enforce any rights they may have had relating to part-time employees.
In its reply to the complaint and before us, counsel for the respondent took the position that the complainant had abandoned any bargaining rights it may have had for the part-time employees. The parties agreed that the complaint raised this point as the central issue and argued the case accordingly.
The Board has recognized the concept of abandonment for many years. The Board's comments in J. S. Mechanical, [1979] OLRB Rep. Feb. 110, at pg. 111, relating to the concept of abandonment, are worth noting:
Over the last 20 years the principle of abandonment has been deeply entrenched in the Board's jurisprudence. Once a union has obtained bargaining rights either through certification or voluntary recognition it is expected that it will actively promote those rights. If a union declines to pursue bargaining rights it may lose them through disuse. Whether a union has abandoned its bargaining rights is a matter which must be assessed on the facts of each individual case, but once the Board is satisfied that a union has failed to preserve its rights, the union may no longer rely on them...
In assessing the bargaining relationship between the union and the employer to determine whether or not a union has abandoned its bargaining rights, the Board considers various factors. Among other possible indicators, the Board looks to the length of the unions inactivity, whether it has made attempts to negotiate or renew a collective agreement, whether the union has sought to administer the collective agreement through the grievance and arbitration provisions in the collective agreement, whether terms and conditions of employment have been changed by the employer without objection from the union as well as whether there are any extenuating circumstances to explain an apparent failure to assert bargaining rights.
On the facts before us, we are satisfied that the complainant abandoned its bargaining rights for the part-time employees that appear to be included in its bargaining unit. There is no evidence before us which indicates the complainant or its predecessor ever asserted bargaining rights n behalf of the part-time employees. At least as early as 1977, representatives of the complainant became aware of the fact that the respondent considered the part-time employees beyond the scope of the collective agreements. The complainant's efforts over the years to amend the recognition clause to include part-time employees within its scope indicate that representatives of the complainant recognized that any bargaining rights they may have had for part-time employees were lost. At no time did the complainant challenge the respondent's position by means of a grievance. Although we were not referred to any cases in which it was found that a bargaining agent abandoned only a part of its bargaining rights, we are satisfied that such a finding is appropriate in the circumstances of this case. The Board hereby confirms its oral ruling.