Southern Ontario Newspaper Guild Local 87, The Newspaper Guild (CLC, AFL-CIO) v. Metroland Printing, Publishing and Distributing Ltd., 1994 CanLII 9823

Southern Ontario Newspaper Guild Local 87, The Newspaper Guild (CLC, AFL-CIO) v. Metroland Printing, Publishing and Distributing Ltd.

[1994] OLRB Rep. February 160

1945-93-R Southern Ontario Newspaper Guild Local 87, The Newspaper Guild (CLC, AFL-CIO), Applicant v. Metroland Printing, Publishing and Distributing Ltd., Responding Party

APPEARANCES: Kathleen Martin, Paul Pellettier and Stan Howe for the applicant; Douglas K. Gray, Sarah A. Eves, Brenda Biller and Joe Anderson for the responding party.

BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members W. H. Wightman and K. Davies.

DECISION OF THE BOARD; February 15, 1994

1This is an application for a combination of bargaining units pursuant to section 7 of the Labour Relations Act.

2The application was heard together with an application for certification in Board File No. 1944-93-R. By decision dated November 17, 1993 the Board certified the applicant to represent the following unit of the respondent's employees:

all editorial employees of Metroland Printing, Publishing and Distributing Ltd. in Simcoe County save and except the Publisher, the Editor in Chief, and the News Editor at the Barrie Advance, save and except those employees covered by an existing collective agreement as at September 14,1993.

3The applicant seeks to have this unit combined with the following existing bargaining unit:

all editorial employees of Metroland Printing, Publishing and Distributing Ltd., in the Municipality of Metropolitan Toronto, the Regional Municipalities of Halton, Peel, York and Durham, the Township of West Gwillimbury, all editorial employees at Erin Echo and Rockwood Review, save and except, the Publisher of each newspaper, the Editors in Chief at each of Newmarket/Aurora Era-Banner and Richmond Hill/Thornhill/Vaughan Liberal, Oshawa Whitby This Week and the Ajax/Pickering News Advertiser, Brampton Guardian and Georgetown Independent/Acton Free Press, Etobicoke GuardianlNorth York/Scarborough Mirrors, Markham Economist and Sun/Stouffville Tribune, the Director of Editorial at the Mississauga News, the Editors at the Ajax/Pickering News Advertiser, Burlington Post, Brampton Guardian, Markham Economist and Sun, Stouffville Tribune, Milton Canadian Champion, Oakville Beaver, Oshawa/Whitby This Week, Richmond Hill/Thornhill/Vaughan Liberal, Today's Seniors, the Managing Editors at the Era-Banner/Newmarket, the Era-Banner/Aurora, the Era-Banner/Georgina, Scarborough/North York Mirrors, Etobicoke Guardian, Mississauga News, Richmond Hill/Thornhill/Vaughan Liberal, Georgetown Independent/Acton Free Press, the Associate Editor at the Oakville Beaver, News Editors at Oshawa/Whitby This Week, Burlington Post, Acton Free Press/Georgetown Independent, and Chief Photographers at Mississauga News, Burlington Post and Oshawa/Whitby, Ajax/Pickering and persons who exercise managerial functions or who are employed in a confidential capacity in matters relating to labour relations within the meaning of the Ontario Labour Relations Act.

4The applicant also requests that the Board leave it to the parties, in the first instance, to attempt to resolve any issues arising out of the Board's order, with the Board remaining seized to resolve any difficulties. If the Board is unwilling to remain seized, the applicant requests that the Board amend the scope and recognition clause of the collective agreement to include the newly certified "Simcoe employees".

5At the hearing, the respondent was prepared to consent to the combination order provided the Board: (i) did not remain seized to deal with any further remedial relief; (ii) directed a freeze on the terms and conditions of employment of the newly certified group; and (iii) determined that the applicant has no remaining right to first contract arbitration. If the Board was unwilling to do so, the respondent submitted that the application should be dismissed. The basis for the respondent's position was that the parties were in the open period under the collective agreement and, with bargaining likely about to begin, the parties should be afforded the widest possible leeway to sort out the effects of the combination order on the two groups. Otherwise, there would be two or more "tracks" of dispute resolution, with uncertainty as to the scope of each. In the respondent's view, this would do little to promote viable and stable collective bargaining and would cause serious labour relations problems within the meaning of section 7(3).

6Subsequent to the hearing, the Board received a series of letters from counsel for the parties. By letter dated December 8, 1993 counsel for the respondent wrote:

It has come to our attention that the Guild apparently elected not to serve notice to bargain in connection with the potential renewal of the collective agreement. Accordingly, it is automatically renewed for a period of one year expiring December 2, 1994.

This will reiterate the Company's position argued at the hearing that the Company would wish to have an opportunity to negotiate the terms and conditions of employment of the Simcoe employees. We wanted the Board to be aware of this new information which was obviously not available at the hearing, in coming to its decision.

7Applicant's counsel replied by letter dated December 17, 1993, which states in part:

As the Board is aware, the collective agreement in respect of the existing Metroland bargaining unit has been automatically renewed for a period of one year expiring on December 2, 1994.

As a result of this situation, it is the Union's position that the premise of the Employer's position argued at the hearing has been totally undermined. As the Board will recall, the Employer took the position that the Board should not remain seized in this matter because the parties were about to commence collective bargaining and accordingly, the Board should merely let collective bargaining take its normal course. In the course of its argument, the Employer distinguished the instant case from an earlier decision of the Board in Premark Canada Inc., [1993] OLRB Report, June 540, on the basis that in Premark the Board had only remained seized because the collective agreement ran until 1995.

As a result of the automatic renewal of the existing Metroland collective agreement until December 2, 1994, the instant case is now indistinguishable from the Board's decision in Premark Canada Inc., supra. The Union therefore submits that the Board should follow the Premark decision and grant the combination order, refer the matter back to the parties, and remain seized with respect to any further remedial relief.

We reiterate the Union's position that should the Board accept the Employer's argument not to remain seized, then the Board should order that the employees covered by the editorial unit in Simcoe County be rolled into the existing collective agreement (which now expires December 2, 1994), and that, henceforth, all their terms and conditions of employment should be governed by that collective agreement.

8The respondent's reply to this letter is dated December 23, 1993:

In view of the union's election to not give notice to bargain, it is the Company's position that the Board should do one of the following, in order of preference:

1. dismiss the combination application;

2. grant the combination application; order a freeze of the terms and conditions of the Simcoe employees until the right to strike or lock-out arises or the parties otherwise agree, whichever occurs first; and not remain seized of any further outstanding issues; or

3. grant the combination application and remain seized of any issues that the parties cannot resolve themselves.

We will not repeat the arguments made at the original hearing. It has been the Company's position throughout, and it remains the Company's position, that the Board should make an order that has the least impact on the bargaining process, and allows the parties to bargain the terms and conditions of employment of the Simcoe employees with a minimum of interference.

The Company has made the submission, and we will not repeat it here, that if the application is granted, there is no longer any "first collective agreement" that gives rise to any right to first contract arbitration.

If the first option is selected, the parties can bargain their own collective agreement for the Simcoe employees, and the trade union can exercise its right to first contract arbitration if so advised.

If the second option is selected, the parties can bargain the terms and conditions of the Simcoe employees; if they do not arrive at an agreement, the status quo will prevail until the negotiation of a new collective agreement.

If the third option is selected, the Board will be in the position of acting as an interest arbitrator if the parties cannot agree on terms and conditions of employment for the Simcoe employees. For all of the reasons advanced at the hearing, which I will not repeat, this is not a desirable alternative.

In the result, it is the Company's position that nothing has materially changed as a result of the union's election not to give notice to bargain.

9The correspondence concludes with a letter from the applicant dated January 6, 1994, which states in part:

Firstly, we note that the Employer appears to have changed the order of its proposed disposition of the combination application. At the conclusion of the Employer's argument at the hearing in this matter, we understood the Employer's first position to be that the Board should grant the combination application, order a freeze of the terms and conditions of the Simcoe employees and that, only in the alternative, should the Board dismiss the combination application. We note that the Employer has now reversed the order of its disposition of the combination application, notwithstanding its assertion that nothing has materially changed as a result of the automatic renewal of the collective agreement.

In addition, in response to the Employer's assertion that nothing has been changed by the automatic renewal of the collective agreement, the Union reiterates that the fact of the renewal has significantly undermined the Employer's argument in respect of its second option as outlined in its letter dated December 23, 1993. As the Board has stated in Premark, following the granting of a combination order, there can be only one collective agreement. Therefore, although the parties can seek to bargain the terms and conditions applicable to the Simcoe County employees, there can be no access to a strike or lock-out until the expiry of the current collective agreement, i.e. December 3,1994. In addition, under the Employer's scenario, the parties would not have access to first agreement arbitration; a position which the Union disagrees with but which if correct, would result in there being no formal mechanism available to the parties to facilitate a settlement. In the result, the bargaining process and the ultimate settlement of the terms and conditions of employment applicable to the Simcoe County employees may be significantly delayed until after December 3, 1994.

Moreover, in the event that bargaining is delayed, the Union may become vulnerable to a termination application under section 58 of the Act, since there is a risk that a collective agreement involving terms and conditions applicable to the Simcoe County employees will not be concluded one year after the certification.

In sum, should the Board adopt the Employer's second option, there is the potential for excessive delay in the finalization of a collective agreement. It is submitted that such a scenario clearly offends the purposes of the Act to promote, inter alia, harmonious labour relations, industrial stability and the ongoing settlement of differences between employers and trade unions and to provide for effective, fair and expeditious methods of dispute resolution. As well, it offends the particular provisions of the Act which are designed to expedite the certification and first agreement process. Accordingly, it is submitted that the Board should reject the Employer's argument and instead should follow its existing jurisprudence to grant the combination order, refer the matter back to the parties, and remain seized with respect to any further remedial relief.

10It appears from the parties' correspondence that the factual sands have shifted somewhat since this matter was heard. Where once the existing group was about to be in bargaining for a renewal agreement, now it is subject to a collective agreement which does not expire for another nine months. Since much of the respondent's evidence and argument was predicated on its understanding of the impending facts, this development does nothing to assist its case. The respondent can no longer rely on the assertion that the "normal" bargaining process ought to be allowed to take its course in respect of all issues. Having said that, however, the Board is not satisfied that the respondent's arguments can be disposed of solely by reference to the decision in Premark Canada Inc. [1993] OLRB Rep. June 540, as submitted by the applicant.

11In Premark, the employer argued, among other things, that a combination order ought not to be granted because it would render the newly certified group subject to the terms and conditions of employment set out in the collective agreement applicable to the existing group. It was argued there, as here, that the Board should use its combination power in such a way as to interfere with the collective bargaining process as little as possible. To the employer in Premark, this meant that a combination order should not be granted if it would deprive the parties of the opportunity to bargain the terms and conditions of employment of the newly certified group.

12The Board rejected this argument on the basis that it proceeded from a faulty assumption viz, that an order combining a newly certified group with an existing bargaining unit meant that the former group would automatically become subject to the latter's collective agreement. This is not the case. Without an accompanying amendment to the scope and recognition clause of the collective agreement, there can be no argument that the newly certified group inherits the terms and conditions of employment set out in that agreement. In the result, the Board ordered the units combined, and left it to the parties to negotiate the consequences, with the Board remaining seized to resolve any difficulties.

13In the present case, the applicant's request for an amendment to the scope and recognition clause of the collective agreement is framed in the alternative. Its primary position is that the units ought to be combined, with the Board remaining seized to resolve any difficulties. Despite the somewhat greater flexibility in bargaining this would seem to provide, the respondent is nevertheless concerned that the Board's seizure power or the possibility of a continuing right to first contract arbitration might be used to displace the normal methods for resolving collective bargaining disputes. The respondent then seeks to locate these concerns (which, in theory at least, do not depend upon the timing of the combination order in relation to the expiry of the existing collective agreement) within paragraphs (b) and (c) of subsection 7(3) of the Act. This provision states:

7. (3) The Board may take into account such factors as it considers appropriate and shall consider the extent to which combining the bargaining units,

(a) would facilitate viable and stable collective bargaining;

(b) would reduce fragmentation of bargaining units; or

(c) would cause serious labour relations problems.

14In the Board's view, these concerns do not provide a sufficient basis for denying the combination order or for causing the Board to depart from its developing practice of leaving it to the parties, in the first instance, to bargain about the consequences of the Board's order, with the Board remaining seized to resolve any difficulties.

15Section 7(5) of the Act states:

7(5) In combining bargaining units, the Board may amend any certificate or any provision of a collective agreement and may make such other orders as it considers appropriate in the circumstances.

In the cases that have been dealt with by the Board to date, it has generally held the power conferred by section 7(5) in abeyance pending efforts by the parties themselves to bargain about the consequences of the combination order in accordance with their own timetable and interests. It is not apparent to the Board, nor is there any evidence to suggest, that retaining the jurisdiction that the statute expressly confers would cause serious labour relations problems or would not facilitate viable and stable collective bargaining.

16Likewise, the possibility that there may continue to exist a right to first contract arbitration is a product of the interplay between the recent statutory amendments and the prior language. The result is not entirely clear. However, uncertainty as to the parties' respective legal and practical positions is a fact of life under any newly amended legislation. It is not a serious labour relations problem within the meaning of section 7(3); nor is the possibility of a continuing right to first contract arbitration a matter on which the Board is prepared to pronounce in the absence of a specific request on specific facts in a specific case.

17Precisely to what extent the Board will choose to exercise the remedial jurisdiction conferred by section 7(5) and what issues are the appropriate subject matter of a request thereunder, remains to be seen. The point, however, is that the statute expressly recognizes that the parties ought to have some outlet for the resolution of differences arising from the combination order that differs from the existing dispute resolution mechanisms under the Act. For the Board to say as part of a combination order and without more, that it will not exercise this jurisdiction or that it will rely on the very existence of this power as a basis for denying the order, would frustrate this statutory purpose.

18Finally, and even assuming that the Board has the power to direct a "freeze" on the terms and conditions of employment of the newly certified group, there is no basis for doing so on the facts of this case. To the extent that this request is founded on the concern that the newly certified employees may inherit the terms and conditions of employment set out in the collective agreement, it has been addressed above. If, on the other hand, it is intended to bring the process of bargaining the effects of the combination order within the same timetable as applies to the current agreement, there is no statutory or factual basis for any such delay.

19In the result, and having regard to the criteria set out in section 7(3), the evidence and the submissions of the parties, the Board orders that the two bargaining units be combined. The Board will remain seized to deal with any further remedial relief.