Christian Labour Association of Canada v. Mercedes Corporation, 1992 CanLII 6367

Christian Labour Association of Canada v. Mercedes Corporation c.o.b. as Chateau Gardens Queens

[1992] OLRB Rep. August 906

3592-91-R; 4125-91-U Christian Labour Association of Canada, Applicant v. Mer­cedes Corporation c.o.b. as Chateau Gardens Queens, Respondent v. London and District Service Workers' Union, Local 220, Intervener; London and District Ser­vice Workers' Union, Local 220, S.E.I.U., A.F.L., C.I.O., C.L.C., Complainant v. Christian Labour Association of Canada, Respondent

BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members R. M. Sloan and D. A. Patter­son.

APPEARANCES: Elizabeth Forster for the Christian Labour Association of Canada; Ron Gingrich for Mercedes Corporation; no one appearing on behalf of S.E.I.U., Local 220.

DECISION OF THE BOARD; August 4, 1992

I

1. This is an application for certification in which the Christian Labour Association of Canada ("CLAC") seeks to displace the London and District Service Workers' Union, Local 220 ("SEIU") as the bargaining agent for a part-time unit of employees working at the Chateau Gar­dens Nursing Home in London, Ontario.

2. This certification application was made on February 6, 1992. CLAC requested that a "pre-hearing representation vote" be taken. By decision dated February 28, 1992 the Board deter­mined that CLAC had the requisite appearance of membership support to warrant the taking of such vote.

3. The vote was taken on March 11, 1992. The voting constituency is set out in paragraph 5 of the Board's decision. It need not be repeated here. It suffices to say that the parties identified an issue concerning the "timeliness" of the application, and the Board directed that the ballot box be sealed and the ballots not counted until that matter was resolved.

4. CLAC takes the position that its application is timely. The SEIU maintains that it is not. Both union parties made brief written submissions with respect to the timeliness question.

5. On March 23, 1992 the SEIU filed an unfair labour practice complaint naming CLAC as respondent.

6. On April 7, 1992 the Registrar of the Board sent the parties a notice in Form 8 fixing April 29, 1992 as the date for a hearing before the Board to consider the timeliness question. Sub­sequently, the Board sent the parties a separate notice in Form 8, setting the unfair labour practice complaint down for hearing on the same date as the certification case. Since the matters were interrelated, it seemed sensible to set them down for hearing together.

7. By letter dated April 22, 1992 counsel for SEIU withdrew the unfair labour practice complaint. That left the certification matter pending before the Board, and to avoid any confusion, counsel for CLAC sent the parties, counsel for the SEIU, and the Board this Fax:

"Thank you for your letter of April 23, 1992. To avoid any confusion, I would be grateful if you would confirm that the hearing into the issues arising out of the application for certification in Board File 3592-91-R will be held as scheduled on April 29, 1992".

8. There is no written record of the Registrar's response to this Fax; but, in any event, there was nothing to derail the certification hearing fixed for April 29, 1992. The fact that the SEIU had filed, then later withdrawn, an unfair labour practice complaint, did not alter the hear­ing date fixed for the certification application - that is, the hearing to consider the SEIU'S chal­lenge to the timeliness of CLAC's certification application.

9. In the ordinary course, the Registrar confirmed that the complaint that the SEIU had filed would not proceed. There was no revision or cancellation of the certification hearing, nor any reason to do so.

10. On April 29, 1992 CLAC, its counsel, and a representative of the respondent employer attended the hearing. The SEIU did not appear, and in accordance with its usual practice, the Board adjourned the matter, for a time, in case the SEIU or its counsel were simply late in arriv­ing.

11. When the hearing reconvened, the Board was advised by CLAC's counsel that she had made enquiries and had determined that despite her letter of April 24, 1992, and the absence of any communication from the Registrar cancelling the hearing, the SEIU's representative was con­fused and would not be in attendance. There was no direct communication from the SEIU in that regard, nor has there been any communication from the SEIU following the April 29, 1992 hear­ing. As of the time of writing, SEIU has made no submissions about "confusion" or otherwise.

12. In the circumstances the Board decided to proceed on April 29, 1992, despite the SEIU's absence. This was a certification application, a representation vote had been taken, and all parties were anxious to ascertain whether the application was timely and, therefore, whether the ballots could be counted. There was no reason to adjourn the hearing and no direct request or explanation from the SEIU either that morning, or later.

II

13. The facts in this matter are not in dispute. The problem arises from the terms of the Hospital Labour Disputes Arbitration Act ("HLDAA") and the application of those terms to the circumstances under review.

14. The provisions of the HLDAA to which reference will be made are as follows:

8.-(1) Where there are matters in dispute between parties to be decided by more than one arbi­tration in accordance with this Act, the parties may agree in writing that the matters in dispute shall be decided by one board of arbitration.

(2) For the purposes of section 6, the trade unions and councils of trade unions that are the bar­gaining agents for or on behalf of any hospital employees to whom this Act applies shall be one party and the employers of such employees shall be the other party.

(3) In an arbitration to which this section applies, the board may, in addition to the powers con­ferred upon a board of arbitration by this Act,

(a) make a decision on matters of common dispute between all of the parties; and

(b) refer matters of particular dispute to the parties concerned for further bar­gaining.

(4) Where matters of particular dispute are not resolved by further collective bargaining under clause (3)(b), the board shall decide the matters.

9.-(l) The board of arbitration shall examine into and decide on matters that are in dispute and any other matters that appear to the board necessary to be decided in order to conclude a collec­tive agreement between the parties, but the board shall not decide any matters that come within the jurisdiction of the Ontario Labour Relations Board.

(2) The board of arbitration shall remain seized of and may deal with all matters in dispute between the parties until a collective agreement is in effect between the parties.

(3) The Arbitrations Act does not apply to arbitrations under 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 sections 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 chair 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) Despite 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 54 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 54(1) and subsection 58(2) of the Labour Relations Act.

12.-(2) Despite section 62 of the Labour Relations Act, where notice has been given under sec­tion 54 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 agreement 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 58(2) of the Labour Relations Act, as the case may be.

For comparison purposes, we also set out section 5(4) and 62(2) of the Labour Relations Act:

5.-(4) Where a collective agreement is for a term of not more than three years, a trade union may, subject to section 62, 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.

62.-(2) Where notice has been given under section 54 and the Minister has appointed a concilia­tion officer or a mediator, no application for certification of a bargaining agent of any of the employees in the bargaining units as defined in the collective agreement and no 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 as defined in the agreement shall be made after the date when the agreement ceased to operate or the date when the Minister appointed a concilia­tion officer or a mediator, whichever is later, unless following the appointment of a conciliation officer or a mediator, if no collective agreement has been made.

(a) at least twelve months have elapsed from the date of the appointment of the conciliation officer or a mediator;

(b) a conciliation board or a mediator has been appointed and thirty days have elapsed after the report of the conciliation board or the mediator has been released by the Minister to the parties; or

(c) thirty days have elapsed after the Minister has informed the parties that he or she does not consider it desirable to appoint a conciliation board,

whichever is later.

15. Section 5(4) of the Labour Relations Act prescribes the so-called "open period" during which employees are permitted to terminate the bargaining rights of their current bargaining agent, or replace their existing union with a new one. Section 5(4) represents a balancing of the interests of employers, employees, and incumbent unions. Once a collective agreement is signed, there is a prescribed period of labour relations stability during which there can be no challenge to a union's status as the employees' bargaining agent. Such challenges can only be made during the last two months - the "open period" - of the collective agreement.

16. Pursuant to section 62(2), the "open period" can "remain open" beyond the expiry date of the collective agreement, unless a conciliation officer is appointed to assist the bargaining parties to conclude a new collective agreement. If that happens, the Legislature has determined that there should be no challenge to the union's position during the conciliation process. If the parties con­clude a collective agreement during conciliation, the "open period" then becomes the last two months of that collective agreement. Accordingly, unhappy employees are guaranteed at least two months to challenge their existing union, and that period may be extended depending upon the timing and results of conciliation.

17. This formula is relatively straightforward. It depends upon being able to ascertain when the 'open period" will be, but under the Labour Relations Act scheme, that is not particularly dif­ficult. An employee or a raiding union need only look at the terms of the existing collective agree­ment. Such collective agreement must be in writing and must have a "specific" term - that is, a term of operation which is fixed and readily ascertainable from the document itself (see sections 1(1) and 54(1) of the Act). An interested person need only look at the duration clause, note the stipu­lated expiry date, and count back two months.

18. For employees governed by the HLDAA, the process is not so simple. Because of the process of interest arbitration to which they must resort, they may find themselves without a collec­tive agreement for extensive periods of time, and pursuant to the HLDAA , they cannot challenge their union during the arbitration process. Thus, to the extent that the exercise of their statutory right to change unions is linked to the term of operation of a collective agreement, and an ascer­tainable "open period", it may be very difficult to determine just when that "open period" will be. Their situation is further complicated by the likelihood that any agreement resulting from arbitra­tion will be made "retroactive", and the arbitration award may issue only a few months before - or even after - the nominal expiry date of the collective agreement in question. In the result, the sim­ple formula of "open periods" envisaged by section 5(4) of the Labour Relations Act does not work very well in the hospital sector and employees are driven to the provisions of the HLDAA -which are not a model of clarity.

III - The Facts

19. It will be convenient to set out the facts in chronological order. As we have already mentioned, those facts are quite simple. What is difficult is the application of the HLDAA to them.

20. The last formal collective agreement between Chateau Gardens and the S.E.I.U. ("the 1986-88 agreement") was signed in September 1987, and had a term of operation from April 1, 1986 until March 31, 1988. In other words, the process by which the 1986-88 collective agreement was ultimately consummated, was not concluded until sixteen months after the agreement nominally began to operate, or about six months before this two-year agreement was scheduled to expire. That kind of delay is characteristic of HLDAA processes and the relationship of these parties. The collective agreement was hardly settled before the parties would be required to negotiate a new one.

21. The negotiations to conclude a new collective agreement ("the 1988-90 agreement") were not successful either. The matters in dispute were referred to arbitration before an arbitration board chaired by Prof. Michael Bendel. The Bendel panel was constituted pursuant to section 8 of the HLDAA. It had before it the submissions of eleven "hospitals", including Chateau Gardens, and heard submissions on both "common" and "local" issues.

22. There was no dispute before the Bendel arbitration board about the term of the pro­posed collective agreement. The parties were agreed that the 1986-88 agreement should be replaced by a new two-year agreement running from April 1, 1988 to March 31, 1990. But there was much else in dispute, and the Bendel award did not issue until April 19, 1989, more than a year after the collective agreement to which it referred was to start. The Bendel award was not actually finalized until February 2, 1990, with a majority decision refusing to reconsider its award of April 19, 1989.

23. The Bendel award was never incorporated into a formal collective agreement. The parties merely implemented its terms, then went on to the next round of arbitration, for as Prof. Ben-del noted in his award that there has been little bargaining between these parties. Their last three disputes had been resolved by arbitration. For these parties, arbitration has been a pervasive and almost continuous process.

24. One result of this is that there was no formal collective agreement put in place for the period April 1, 1988 - March 31, 1990. Another is that employees wishing to exercise their statu­tory right to change bargaining agents will have some difficulty determining just when they are legally permitted to do so. What the parties have in mind is simple enough: sequential two-year agreements. The problem is the protracted arbitration process by which the precise contents of those agreements is determined.

25. The next arbitration board (for the 1990-1992 agreement) was also constituted pursuant to section 8 of the HLDAA. It was chaired by Gerald Charney, Q.C. As before, there were sub­missions from eleven employers and the parties anticipated a two-year term from April 1, 1990 to March 31, 1992.

26. Hearings before the Charney Board took place in January, April, May and June 1991. The Board heard the parties' submissions on a large number of "central" and "local" issues - that is, issues common to the eleven employer participants, as well as issues particular to specific nurs­ing homes. This process was consistent with the parties' past practice and section 8(3) and 8(4) of the HLDAA. The Charney panel described the "background" this way:

The union who has bargaining rights for the above eleven nursing homes had applied for indi­vidual arbitration for each home. In the past the homes had bargained jointly. I was appointed the arbitrator under the Hospital Labour Disputes Arbitrations Act, for all eleven nursing homes and even though these matters were separate, I asked all the parties to meet with the Board, which was the same in each of the eleven homes, to discuss procedure.

As a result, the parties, that is, the eleven nursing homes and the union, both agreed that they would bargain jointly. There would be separate submissions on behalf of each nursing home for local issues as there had been in the past.

27. On December 16, 1991 the Charney panel issued what it described as a "preliminary award", settling certain common items in dispute. The award provided:

Consistent with the legislation, all matters herein are effective on the date of the award [December 16, 1991] unless otherwise provided.

28. Among the common items resolved in the preliminary award, was the "term of collective agreement" which (reflecting the parties' agreement) was to be from April 1, 1990 to March 31, 1992. As before, what is contemplated is a two-year arrangement, to replace the one which went before.

29. However, the complete contents of that collective agreement were not yet fully deter­mined and are still not settled because the so-called "local issues" are still outstanding. The award of December 16, 1991 only settles the common terms of a collective agreement which - nominally at least - would expire in about three and a half months, on March 31, 1992. Those are the most important items in dispute, but they are not the only ones.

30. In planning its campaign to replace the SEIU, CLAC was guided by what it took to be the effect of the Charney award: the creation of the 1990-1992 collective agreement that would expire on March 31,1992, thereby making the "open period" (the last two months) - February and March 1992. CLAC enrolled into membership more than 90% of the part-time employees currently represented by the SEIU, and filed its application on February 6, 1992. This is clearly within the nominal "open period", if the Charney award provides the correct benchmark.

31. CLAC reasoned that bargaining and arbitration have produced two-year protocols with the most recent one ending on March 31, 1992. The Charney award merely follows the previous pattern, and incorporates the parties' agreement. The award specifies that the collective agreement it is dealing with, will have a term of operation: April 1, 1990 - March 31, 1992. On that theory, this certification application is timely, and the Board can proceed to count the ballots to see which union the employees want to represent them.

32. But, unfortunately, it may not be as simple as that. At the time this application was made (and as late as the date of the hearing), the Charney panel had not issued its award settling the local issues. Thus, at the time CLAC's certification application was made, arbitration was ongoing, there was no collective agreement in effect, and there could be no collective agreement until the outstanding local issues were resolved. In fact, there had been no collective agreement (as opposed to arbitration awards) for some time - arguably sincethe last signed document between Chateau Gardens and the SEIU expired on March 31, 1988.

33. It is not clear how the HLDAA provisions apply to this situation, save to note that there is no formal "collective agreement" from which one can calculate an "open period" under section 5(4) of the Labour Relations Act, and the thrust of the HLDAA scheme is that there can­not be a challenge to an incumbent union during the process of arbitration. If an actual collective agreement is required for an "open period" to exist, then this application may be premature.

IV

34. While the problem posed by this case has the flavour of a Times crossword puzzle, in our opinion, the key to its solution lies in section 10(9) of the HLDAA, when read together with the purpose of the "open period", and the various HLDAA provisions dealing with the "term of operation" of the collective agreement.

35. As we have already mentioned, the "term of operation" prescribes not only the dura­tion of a particular benefit stream, and the parties' bargaining cycle, but also the "open period" during which employees can change bargaining agents. In order to decide what the term of opera­tion is, section 10(9)-(12) must be read together, and in that regard we might note that section 10(12) refers specifically to section 5(4) of the Labour Relations Act - the section which specifies when a raiding union can apply to displace its rival.

36. Since we want this decision to be understood by the employees affected by it, we will work through the relevant provisions of HLDAA, one by one.

37. First of all, we think it is significant that under section 10(9), it is the date upon which the arbitrator settles the common issues, that is deemed to be the "effective date" of any document that constitutes a collective agreement. That is the date when any eventual collective agreement comes into existence. It is from that date that subsequent HLDAA provisions mark time.

38. Subsection 10 provides that the collective agreement remains in force for a period of one year from the effective date [the "common issue" decision date - here December 16, 1991]. However, subsection 11 can override subsection 10, providing that the agreement will cease to operate two years after the expiry of the old collective agreement. Stopping there, the formula is: the agreement operates for one year after the date of the arbitration award [December 16, 1991], but no longer than two years from the expiry of the old agreement.

39. Subsection (12) adds an additional variable: if the award is issued beyond two years from the expiry of the old agreement, the collective agreement is extended for a period of ninety days for the express purpose of creating an ascertainable "open period". In effect, the statute breathes artificial life into an expired agreement for the purpose of giving employees an opportu­nity to challenge or change their bargaining agent.

40. This formula is a little bit complicated but, in each case, it turns upon an ascertainable benchmark which can be readily ascertained by disaffected employees and rival unions. One need only know two things: the expiry date of the old agreement which will be apparent from its terms, and the date of the common issue arbitration award which will likewise be apparent on its face.

41. This scheme does not depend upon whether or when the local issues are resolved at arbitration. Those matters can either be decided by the arbitrator immediately, or s/he can refer them to the parties for further bargaining. But any delays associated with the resolution of local issues will not interfere with the "effective date" from which the collective agreement operates, and thus the term of operation of the agreement. And, if the term of operation is fixed with refer­ence to ascertainable facts and statutory parameters, one will be able to calculate the "open period". Finally, in this scheme, employees will have an opportunity to review the basic benefits secured by their bargaining agent before being asked to vote for a rival (assuming that employees might blame their union for the results of arbitration - an unwarranted conclusion, but not an unlikely scenario).

V

42. What then is the result in the instant case?

43. The Charney central issues award was released on December 16, 1991. The "effective date of the document that constitutes a collective agreement between the parties" is therefore deemed to be December 16, 1991 [10(9) of the HLDAA].

44. Looking only at section 10(10) of the HLDAA, the parties' collective agreement would remain in force for a period of one year from the effective date - that is, one year from December 16, 1991. Stopping here, then, the agreement would expire on December 16, 1992 and the last two months of the collective agreement's operation would be mid-October to mid-December 1992.

45. But section 10(11) of the HLDAA overrides subsection (10). Subsection (11) provides that the collective agreement must cease to operate two years from the day upon which the previ­ous collective agreement expired.

46. When did the previous collective agreement expire? The better view is: March 31, 1990, the expiry date prescribed in the Bendel award, the date which the parties had agreed to (thereby maintaining their pattern of two-year protocols) and, quite apart from that, the date which one arrives at applying to the Bendel award the same statutory analysis set out above. In either case, the document which constitutes a collective agreement would expire two years after the old agree­ment expired on March 31, 1988. It would therefore expire at the end of March 1990, just as the parties and Arbitrator Bendel anticipated.

47. If that is so, then the replacement agreement covering the next two years (1990-1992) and eventually based upon the Charney award would necessarily expire on March 31, 1992- which, again, is precisely what arbitrator Charney prescribed in his award, what the parties agreed to, and which is what flows, as well, from the application of section 10(11) of the HLDAA.

48. This certification application is therefore timely because it was made during the two-month period preceding March 31, 1992.

49. In the alternative, if anything turns on the fact that the parties did not bother to for­mally transform the Bendel award into a collective agreement, subsection (12) comes into play and the result is the same. The Charney award of December 16, 1991 came down more than two years after the last formal collective agreement between these parties had expired (i.e. in 1988). If that is so, subsection (12) would create an artificial "open period" for ninety days from December 16, 1991, the date the Charney common issues award is released.

50. In our opinion, the arbitration decision contemplated by section 10(12) is the one deter­mining the common issues, and thus the "effective date" of the agreement. That is the award which is significant for calculating the time periods prescribed by section 1O(9)-(11) and it makes sense that section 10(12) refers to the same award: the one issued by Mr. Charney on December 16, 1991.

51. In summary, however one looks at the facts, this displacement application is timely unless we accord some significance to the fact that the parties have not yet formalized a collective agreement because some of the local issues have not been resolved.

52. We are not inclined to do so. It is clear that whenever the parties get around to finaliz­ing their collective agreement, its term of operation must be that prescribed in the statute. And this application will be timely. It would be entirely artificial to say that the CLAC application is untimely just now, but it will become timely when the Charney local issues award is released and the parties get around to formalizing the resulting terms in a collective agreement. It would be inappropriate to withhold counting the ballots when in due course an agreement is consummated and it will necessarily make this certification application timely after all.

53. For the foregoing reasons, the Board directs that the ballot box be opened and the bal­lots counted. The right of the SEIU or CLAC to represent the employees in question will turn upon how the majority of those employees have cast their ballots. Whichever union wins can get on with the process of bargaining - because of course the 1990-1992 agreement has now "expired" too, even though all of its terms have yet to be settled.