International Brotherhood of Electrical Workers, Local 636 v. The Metropolitan General Hospital, 1991 CanLII 6050

[1991] OLRB Rep. April 547

2843-90-R; 2914-90-R International Brotherhood of Electrical Workers, Local 636, Applicant v. The Metropolitan General Hospital, Respondent v. Service Employees' International Union, Local 210, Intervener; International Brother­hood of Electrical Workers, Local 636, Applicant v. The Salvation Army Grace Hospital, Respondent, v. Service Employees' International Union, Local 210, Intervener

BEFORE: Brain Herlich, Vice-Chair, and Board Members W. H. Wightman and C. McDonald.

APPEARANCES: B. Fishbein, C. McKenzie for the applicant; no one appearing for the respon­dents; S. Krashinsky, K. Brown for the intervener.

DECISION OF TILE BOARD; April 26, 1991

1. These are applications for certification in which the applicant (also referred to as "IBEW") is seeking to displace the intervener (also referred to as "SEIU") as the bargaining agent for employees of The Metropolitan General Hospital (also referred to as "Metropolitan") and The Salvation Army Grace Hospital (also referred to as "Grace"). In both cases a pre-hearing vote was requested and held. The ballot boxes were sealed pending a determination of SEIU's objection to the timeliness of both applications. In its decision dated April 8, 1991 the Board dismissed both applications as untimely under the Labour Relations Act (hereinafter referred to as the "Act") and the Hospital Labour Disputes Arbitration Act (hereinafter referred to as the "I-ILDAA"). The Board also denied SEIU's request that the Board bar IBEW from making any further certification applications in respect of the employees affected in the present cases. These are the reasons for that decision.

The Facts

2. The facts of the two cases are similar and the parties agreed to deal with both matters simultaneously.

3. In the first case SELU and Metropolitan were parties to a collective agreement with a term of April 1, 1987 to March 31, 1989. SEIU served notice to bargain under section 53 of the Act on January 9, 1989 and applied for conciliation on April 4, 1989. A conciliation officer was appointed (the precise date of the appointment was not disclosed). The equivalent of a "no board" report under section 3 of the HLDAA was issued on February 8, 1990 and the parties thereafter proceeded to establish an interest board of arbitration. Prior to the hearing before the interest board of arbitration the parties had agreed upon a number of matters to be included in the next collective agreement. Among the items agreed (which, in fact, appear to have included everything except wages) was an agreement that the term of the resulting collective agreement would run from April 1, 1989 to March 31, 1991. The interest arbitration hearing was held on November 16, 1990 and the present application was filed on February 1, 1991 before the interest board of arbitra­tion issued its award dated February 28, 1991.

4. With one significant exception, the facts surrounding the application at Grace are remarkably similar. SEIU and Grace were parties to a collective agreement with a March 31, 1989 expiry date. SEIU provided notice to bargain under section 53 on January 9, 1989 and applied for conciliation on April 4, 1989. Again, we were not advised of the precise date of the appointment of the conciliation officer. However, the HLDAA equivalent of a "no board" issued on November 16, 1989 and the parties thereafter established an interest board of arbitration. Among the items agreed to between the parties prior to the arbitration hearing was that the term of the next collec­tive agreement would be April 1, 1989 to March 31, 1991. The arbitration hearing was held on July 24, 1990 and the award issued on January 25, 1991 (indicating the same term agreed to by the par­ties). The present application was filed on February 8, 1991.

5. As will become evident the facts for our purposes in these cases are virtually identical. In both cases the applications were filed after the commencement of the last two months of the April 1, 1989 to March 31,1991 term the parties had agreed to. In the Metropolitan case the appli­cation was filed prior to the release of the award of the interest board of arbitration. At Grace, the application was filed some two weeks after the release of the interest award.

6. Section 5(4) of the Act provides:

5.-(4) Where a collective agreement is for a term of not more than three years, a trade union may, subject to section 61, apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the last two months of its operation.

7. There was no dispute that both Metropolitan and Grace are hospitals within the meaning of section 1(1)(a) of the HLDAA. Reference must also be made to the following sections of HLDAA:

2.- (2) Except as modified by this Act, the Labour Relations Act applies to any hospital employ­ees to whom this Act applies, to the trade unions and councils of trade unions that act or pur­port to act for or on behalf of any such employees, and to the employers of such employees.

3. Where a conciliation officer appointed under section 16 of the Labour Relations Act is unable to effect a collective agreement within the time allowed under section 18 of that Act, the Minis­ter shall forthwith by notice in writing inform each of the parties that the conciliation officer has been unable to effect a collective agreement, and section 17 and 19 of the Labour Relations Act shall not apply.

4. 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.

10.-(1) Where, during the bargaining under this Act or during the proceedings before the board of arbitration, the parties agree on all the matters to be included in a collective agreement, they shall put them in writing and shall execute the document, and thereupon it constitutes a collec­tive agreement under the Labour Relations Act.

(2) If the parties fail to put the terms of all the matters agreed upon by them in writing or if hav­ing put the terms of their agreement in writing either of them fails to execute the document within seven days after it was executed by the other of them, they shall be deemed not to have made a collective agreement, and the provisions of section 3 and 4 or sections 6 and 9, as the case may be, shall apply.

(3) Where, during the bargaining under this Act or during the proceedings before the board of arbitration, the parties have agreed upon some matters to be included in the collective agreement and have notified the board in writing of the matters agreed upon, the decision of the board shall be confined to the matters not agreed upon by the parties and to such other matters that appear to the board necessary to be decided to conclude a collective agreement between the parties.

(4) Where the parties have not notified the board of arbitration in writing that, during the bar­gaining under this Act or during the proceedings before the board of arbitration, they have agreed upon some matters to be included in the collective agreement, the board shall decide all matters in dispute and such other matters that appear to the board necessary to be decided to conclude a collective agreement between the parties.

(5) Within five days of the date of the decision of the board of arbitration or such longer period as may be agreed upon in writing by the parties, the parties shall prepare and execute a docu­ment giving effect to the decision of the board and any agreement of the parties, and the docu­ment thereupon constitutes a collective agreement.

(6) If the parties fail to prepare and execute a document in the form of a collective agreement giving effect to the decision of the board and any agreement of the parties within the period mentioned in subsection (5), the parties or either of them shall notify the chairman of the board in writing forthwith, and the board shall prepare a document in the form of a collective agree­ment giving effect to the decision of the board and any agreement of the parties and submit the document to the parties for execution.

(7) If the parties or either of them fail to execute the document prepared by the board within a period of five days from the day of its submission by the board to them, the document shall come into effect as though it had been executed by the parties and the document thereupon con­stitutes a collective agreement under the Labour Relations Act.

(8) Except in arbitrations under section 8, the date the board of arbitration gives its decision is the effective date of the document that constitutes a collective agreement between the parties.

(9) The date the board of arbitration gives its decision under section 8 upon matters of common dispute shall be deemed to be the effective date of the document that constitutes a collective agreement between the parties.

(10) Except where the parties agree to a longer term of operation, any document that consti­tutes a collective agreement between the parties shall remain in force for a period of one year from the effective date of the document.

(11) Notwithstanding the provisions of subsection (10) and except where the parties agree to a longer term of operation, a document that constitutes a collective agreement shall cease to oper­ate on the expiry of a period of two years,

(a) from the day upon which notice was given under section 14 of the Labour Relations Act; or

(b) from the day upon which the previous collective agreement ceased to oper­ate where notice was given under section 53 of the Labour Relations Act.

(12) Where under subsection (11), the period of two years has expired on or will expire within a period of less than ninety days from the date the board of arbitration gives its decision, the doc­ument that constitutes a collective agreement shall continue to operate for a period of ninety days from the date the board of arbitration gives its decision for the purposes of subsection 5(4), subsection 53(1) and subsection 57(2) of the Labour Relations Act.

(13) In making its decision upon matters in dispute between the parties, the board of arbitration may provide,

(a) where notice was given under section 14 of the Labour Relations Act, that any of the terms of the agreement except its term of operation shall be retroactive to such day as the board may fix, but not earlier than the day upon which such notice was given; or

(b) where notice was given under section 53 of the Labour Relations Act, that any of the terms of the agreement except its term of operation shall be retroactive to such day as the board may fix, but not earlier than the day upon which the previous agreement ceased to operate.

12.-(2) Notwithstanding section 61 of the Labour Relations Act, where notice has been given under section 53 of that Act by or to a trade union that is the bargaining agent for a bargaining unit of employees of a hospital to or by the employer of such employees and the Minister has appointed a conciliation officer, an application for certification of a bargaining agent of any of the employees of the hospital in the bargaining unit defined in the collective agreement or an application for a declaration that the trade union that was a party to the collective agreement no longer represents the employees in the bargaining unit defined in the agreement shall not be made after the day upon which the agrement ceased to operate or the day upon which the Min­ister appointed a conciliation officer, whichever is later, except in accordance with section 5 or subsection 57(2) of the Labour Relations Act, as the case may be.

The Positions of the Parties

8. SEIU argues as follows in support of its position that both applications are untimely: once a collective agreement expires and a conciliation officer is appointed no displacement (or ter­mination) application can be brought until the appropriate open period under the subsequent col­lective agreement. Reference was made to section 12(2) of the HLDAA and to decisions of the Board in London and District Service Workers' Union, Local 220, [1985] OLRB Rep. Oct. 1490; The Bobier Convalescent Home, [1983] OLRB Rep. June 863; Nel-Gor Castle Nursing Home, [1979] OLRB Rep. Oct. 1013; Salvation Army Grace Hospital, [1978] OLRB Rep. Dec. 1142; and Birchcliff Nursing Home, [1975] OLRB Rep. Apr. 384.

9. Since the Metropolitan application was brought prior to the release of the interest arbi­tration award and since section 10(8) of HLDAA suggests a collective agreement (settled by arbi­tration) is not effective until "the date the board of arbitration gives its decision", the application is therefore untimely notwithstanding the fact that it was brought after the commencement of the last two months of the April 1,1989 to March 31,1991 term the parties had agreed to.

10. A similar argument is made in respect of the application at Grace. However, since this application was filed subsequent to the effective date of the collective agreement resulting from the arbitration award and since this award was released less than 90 days prior to the expiry of the two year period referred to in section 10(12) of the HLDAA, that section continues the operation of the collective agreement and delays the commencement of the open period to a date subsequent to the day on which the present application was filed.

11. SEIU also offers certain policy considerations in support of the legislative interpretation it advances. While open periods are recognized as legitimate opportunities for employees to effec­tively voice their opinion regarding maintaining an established bargaining agent, the HLDAA, like the Act, limits the availability of such periods. The policy underlying those limitations is to pro­mote labour relations stability and to give employees a reasonable opportunity to evaluate the fruits of collective bargaining and, in particular, the performance of their bargaining agent.

12. Under the HLDAA, where strike and lockout sanctions are unavailable to the parties, collective agreements are established through interest arbitration once it is determined that a con­ciliation officer has been unable to effect a collective agreement (see section 4 of the HLDAA).

Though the process may be protracted, the resulting collective agreement is inevitable. In this con­text it would be unfair to subject an incumbent union to a displacement campaign before the col­lective agreement is finalized (as in the Metropolitan case) or before the union and employees are afforded a reasonable opportunity to present and digest its terms (in the Grace case).

13. Not surprisingly, IBEW takes a different view. While it accepts that section 12(2) and the Board's jurisprudence indicate that, once a conciliation officer is appointed and the collective agreement expires, no displacement application can be filed until the open period under the subse­quent agreement, it argues that these applications were, in fact, made during that open period. In each case the application was filed during the last sixty days of what the parties had agreed would be the duration of the resulting collective agreement. In each case the board of arbitration adopted the duration agreed to by the parties (although in the Metropolitan case after the present applica­tion was filed). IBEW points to section 10(3) of the HLDAA and argues that once the parties agree upon a matter to be included in the collective agreement (including its duration) that matter is settled and the Board of Arbitration has no power to address the issue or to vary the parties' agreement. The cases before us are cases of first impression - we are asked to distinguish the cases relied upon by SEIU on the basis that in none of those cases was it disclosed that the parties had agreed on the term of the collective agreement or that the applications in question would have been timely within that agreed term.

14. Insofar as the application of section 10(12) is concerned, IBEW suggests that it ought not to apply in circumstances where the parties have agreed to the duration of the resulting agree­ment and consequently removed that issue from the purview of the interest arbitration.

15. While the legislation must balance industrial relations stability with the freedom of employees' choice, the purpose of certain HLDAA provisions, and in particular section 10(12), is to insure the open period is not lost. It would be contrary to that purpose to interpret the HLDAA in such a fashion as to preclude a displacement application during the last two months of what the parties agreed would be the term of the resulting collective agreement.

Decision

16. We begin with a cursory review of the scheme of the HLDAA with emphasis on effec­tive dates and the duration of collective agreements.

17. Unless the parties agree on all the matters to be included in a collective agreement, the matters in dispute shall be decided by arbitration. Where the parties agree to all matters the result­ing collective agreement is effective with the execution of their agreement (see section 10(1) of HLDAA). In other cases the collective agreement is effective the date the board of arbitration gives its decision (see section 10(8)). Thus, there is (again barring cases where the parties have agreed to all matters) no new collective agreement prior to the release of the award of the interest board of arbitration.

18. For convenience we again set out the provisions of subsections 10(10), 10(11) and

10(12) of HLDAA:

(10) Except where the parties agree to a longer term of operation, any document that consti­tutes a collective agreement between the parties shall remain in force for a period of one year from the effective date of the document.

(11) Notwithstanding the provisions of subsection (10) and except where the parties agree to a longer term of operation, a document that constitutes a collective agreement shall cease to oper­ate on the expiry of a period of two years,

(b) from the day upon which the previous collective agreement ceased to operate where notice was given under section 53 of the Labour Relations Act.

(12) Where under subsection (11), the period of two years has expired on or will expire within a period of less than ninety days from the date the board of arbitration gives its decision, the doc­ument that constitutes a collective agreement shall continue to operate for a period of ninety days from the date the board of arbitration gives its decision for the purposes of subsection 5(4), subsection 53(1) and subsection 57(2) of the Labour Relations Act.

19. The parties do not, however, have unfettered freedom to determine the duration of a collective agreement. Sections 10(10) and 10(11), unlike 10(12), do not distinguish between collec­tive agreements determined by arbitration and those negotiated by the parties. In both cases (sub­ject to the parties' agreement to a longer term) the collective agreement remains in force for a period of one year from the effective date but not beyond the two year period following the expiry of the previous agreement. In practical terms this provides a high degree of predictability regarding the duration of a collective agreement resulting from arbitration. Unless the award of the Board is made within one year of the expiry of the previous agreement (or unless the parties agree to a longer term), the resulting collective agreement will expire two years after the expiry of the prior agreement. This predictability is evident in the present cases - even if interest awards had been released on the very day of the interest arbitration hearings (November 16, 1990 at Metropolitan and July 24, 1990 at Grace), the application of section 10(11) would have resulted in a March 31, 1991 expiry date in both cases. This may well explain why the parties themselves agreed to a March 31, 1991 expiry date.

20. However, as in the present cases, it is not unusual for an interest award to be released close to or, indeed, more than two years after the expiry of the prior agreement. Absent any fur­ther legislative provisions one can imagine the virtual elimination of an open period resulting from the common delays associated with the interest arbitration process. Where an interest award was released subsequent to the expiry of the resulting agreement, the open period might well be limited to the period of time it would take to arrange the appointment of a conciliation officer. It is in this circumstance which section 10(12) comes into play. Where an award is issued after or within 90 days prior to the expiry date otherwise contemplated by subsection 11, the collective agreement continues to operate for a period of 90 days for the purposes of subsections 5(4) (displacement applications), 53(1) (notice to bargain), and 57(2) (termination applications). It is no accident that section 10(12) of the HLDAA not only refers explicitly to section 5(4) of the Act but also mirrors its language in directing that the agreement "shall continue to operate". This latter phrase is obvi­ously intended to dovetail with section 5(4) which makes a displacement application timely "only after the commencement of the last two months of its operation."

21. Although subsection 10(12) is linked to the date of an arbitration award, subsection 10(11) referred to therein applies to a collective agreement whether negotiated or arbitrated. Thus, whether the duration of a collective agreement is otherwise the subject of the parties' agreement or determined by a board or by statute, it continues to operate for a period of 90 days in the circum­stances and for the purposes contemplated by subsection 10(12).

22. The language of subsection 10(12) is extremely clear: where (excepting cases where the parties agree to a term longer than that contemplated by subsections 10(10) and 10(11)) an interest award is issued more than 2 years less 90 days after the expiry of the prior agreement, the resulting agreement continues to operate for a 90 day period for the purpose of, inter alia, displacement applications. This extension is by operation of law and supercedes the parties' agreement, the award of an interest arbitration board or the term which would otherwise result from the applica­tion of subsections 10(10) and 10(11). (We note that this is not the first time the Board has ruled that the provisions of the HLDAA may prevail over the agreement of the parties or the award of an interest arbitrator in respect of the duration of a collective agreement - see Local 865, Interna­tional Union of Operating Engineers, [1978] OLRB Rep. Mar. 326; Hillsdale Nursing Home, [1978] OLRB Rep. Jan. 11.)

23. Were it not for the clarity (if not elegance) of the statutory language, the parties' policy arguments might have been more significant in our deliberations. We are, however, fortified in our conclusions regarding the interpretation of the relevant HLDAA provisions when we consider those arguments. The HLDAA does indeed preserve the "open period" - while it may occur at a time different from that contemplated by the applicant, it is not lost. The advantage of the statu­tory scheme in cases like the present ones is that it provides employees with an opportunity to review and (at least for a short time) experience the benefits and liabilities of the collective agree­ment secured by their bargaining agent rather than asking them to make significant choices about their bargaining agent at a time when they have been waiting 2 years or more for the new collective agreement required under the HLDAA.

24. Neither are we satisfied that the interpretation advanced by the applicant has any signif­icant advantages in respect of the predictability of the open period. While a third party contemplat­ing a displacement application may be forgiven the sensation of trying to hit a moving target, the laws of its movement are quite clear - beginning at a certain and readily ascertainable point in time the open period, as contemplated by section 10(2) of the HLDAA, will be a direct function of the date of the arbitrator's award. There is no less certainty to that reference point than the ones which may be appropriate at other times in the process.

25. We return then to the particular facts of the present cases. In Metropolitan the applica­tion was filed subsequent to the expiry of the prior agreement and the appointment of a concilia­tion officer but prior to the release of the interest award. Is this application timely because it is filed during the last 60 days of the term agreed to by the parties (or indeed, the term resulting from the application of section 10(11) of the HLDAA)? We think not.

26. There is some accuracy but little attraction in Mr. Fishbein's argument that the cases relied upon by SEIU are distinguishable (but see Bobier, supra where the Board dismissed the application without a hearing pursuant to Rule 71 - although not explicit in the case, that applica­tion appears to have been brought during the last 2 months of the period contemplated by section 10(11)(a) of the HLDAA).

27. In our view section 12 of the HLDAA and the cases that have interpreted it clearly demonstrate that once the open period is closed by the appointment of a conciliation officer (and, in the case of a renewal, the expiry of the prior agreement) there can be no new open period before there is a new collective agreement. As the Board observed in Nel-Gor, supra, at para 5:

The scheme of the Act [HLDAA], therefore, is designed to insure that the parties will have a collective agreement. If a termination [or, in our case, displacement] application could interrupt the process which is designed to ultimately establish a collective agreement between the parties, the scheme and purpose of the Act would be frustrated.

28. Thus, once the interest arbitration process is commenced it must be brought to its con­clusion before an application under section 4(5) or 57(2) of the Act can be timely. Where that pro­cess is protracted the "loss" of an open period which "might have been" is remedied by section 10(12) of the HLDAA.

29. It was for these reasons that we ruled the application in Metropolitan untimely.

30. The application at Grace differs, for our purposes, only insofar as it was filed subse­quent to the award of the interest board of arbitration. That award, however, was rendered on January 25, 1991. Since that date is less than 90 days before the second anniversary of the expiry of the prior agreement, section 10(12) of the HLDAA is operative and continues the operation of the resulting collective agreement for a period of 90 days from January 25, 1991. Consequently, the present application (filed on February 8, 1991) is not within the period contemplated by section 5(4) of the Act and is, therefore, untimely.

The Intervener's Request for a Bar

31. SEIU argues that the disruption caused by the applicant's untimely applications ought to lead the Board, pursuant to its discretion under section 103(2)(i) of the Act, to impose a bar with respect to any future applications by IBEW.

32. Referring us again to the policy reasons which, in its view, explain why the present applications are untimely under the HLDAA, SEIU asserts that rather than enjoying the period of stability and having the opportunity to receive and subsequently explain the terms of the new col­lective agreement to its members, it has been required to conduct an election campaign in response to the applicant's untimely applications. This loss is irreparable. In the circumstances the Board ought to exercise its discretion to impose a bar.

33. IBEW responds that the intervener's request is at odds with the Board's practice and jurisprudence regarding the imposition of a bar. There is, it asserts, no case where the Board has imposed a bar after dismissing an application (by way of pre-hearing or otherwise) as untimely.

34. Generally speaking the Board will impose a bar where an application is dismissed in accordance with the expression of employee wishes in a representation vote. Where leave to with­draw is sought after a vote has been directed the Board will issue the "caution" in accordance with the decision in Mathias Ouellette, [1955] CLLC para. 18,026 (see paragraph 7 of Practice Note No. 7). However, in The Bristol Place Hotel, [1979] OLRB Rep. June 486, a bar was imposed when a pre-hearing applicant sought leave to withdraw before the votes contained in a sealed ballot box were counted. In addition there may be other exceptional circumstances (generally tied to con­cerns about abuse of process) where the Board may impose a bar. The Board's approach is usefully summarized in Sonora Cosmetics Inc., [1982] OLRB Rep. June 954 at paragraph 4:

In exercising its discretion under section 103, the Board has not been blind to practical (or tacti­cal) realities of the situation. A certification proceeding may appear very straight-forward to an experienced labour law practitioner, familiar with the Board's rules policies, and jurisprudence, but to a layman or union official who does not regularly appear before the Board, the certifica­tion process may not seem so simple. In the Board's experience, it is neither unusual nor particu­larly surprising that from time to time, certification applications have to be withdrawn, or are dis­missed because they are not properly launched or supported in accordance with the Act or Rules. But this fact alone does not justify the imposition of a bar ... Moreover, the Board is well aware of the potential effect on the momentum of the union's organizing campaign if employees who have joined a union and indicated their desire for collective bargaining are prohibited from real­izing this goal for as much as ten months. Unless there are exceptional circumstances which war­rant prohibiting employees from proceeding with their attempt to organize.. .the Board has been relatively lenient in imposing a bar under section 103.

[emphasis added]

35. Thus, it can be seen that, with the possible exception of The Bristol Place Hotel case, supra, the intervener's request does not fit squarely within the parameters of the Board's usual approach to the exercise of its discretion. In the latter case, however (as in paragraph 7 of Practice

Note No. 7), the concern underlying the Board's approach was to not allow the applicant to avoid the risk of defeat in a representation vote. We are satisfied that the applicant (who, of course, urged us to entertain the application and count the ballots) is not seeking to do that in the present case.

36. Finally, while there is undoubtedly some truth to the intervener's assertion that having had to participate in an unnecessary election campaign has caused it considerable disruption, we are not persuaded that that fact alone warrants the imposition of a bar. Even if we were otherwise attracted to that argument, the intervener's conduct in these proceedings would persuade us other­wise. Although SEIU asserted its timeliness objections from the outset, it repeatedly declined to respond to numerous requests from the applicant to provide the details of its position. Had it acceded to these requests (or, alternatively, had it advanced a vigorous early position that the applications ought to be dismissed on a preliminary basis prior to the holding of a representation vote) there would have been a greater possibility that the necessity of holding representation votes in these matters might have been avoided.

37. It was for all of the above reasons that, in our decision of April 8, 1991 we dismissed these applications and denied SEIU's request for a bar.