Education Support Staff Association v. Ottawa Board of Education
[1994] OLRB Rep. August 1024
4092-93-R Education Support Staff Association, Applicant v. Ottawa Board of Education, Responding Party v. Canadian Union of Public Employees and its Local 1400, Intervenor
BEFORE: Ken Petryshen, Vice-Chair.
APPEARANCES: Jim Shields, Sue Johnson and Pam Stanley for the applicant; Sarah A. Eves, Rand Linttell for the responding party; James Hayes, Blame Donais, Joanne Harvey and Cindy Dubue for the intervenor.
DECISION OF THE BOARD; August 17, 1994
This is an application for certification in which a pre-hearing vote was requested. The Education Support Staff Association ("the ESSA") wishes to displace the Canadian Union of Public Employees and its Local 1400 ("CUPE") as bargaining agent for employees of the Ottawa Board of Education ("the Ottawa Board") employed in the support staff bargaining unit. The Board (differently constituted) directed the taking of a pre-hearing representation vote in a decision dated March 30, 1994. The vote was conducted on April 19, 1994 and the ballot box was sealed.
At a hearing scheduled to deal with a number of issues, the Ottawa Board took the position that the appropriate bargaining unit should deviate from the one contained in the relevant collective agreement by excluding casual employees. At the outset of the hearing, counsel for the Ottawa Board advised the Board that her client agreed to the ESSA's bargaining unit description which is consistent with the bargaining unit description in the relevant collective agreement. With this issue resolved, the parties dealt with whether the ESSA is a trade union and the timeliness of the application.
Counsel for the ESSA called evidence to support the contention that the ESSA is a trade union. The Board finds it unnecessary to review this evidence in detail. At its founding meeting on February 17, 1994, all of the persons who signed membership cards did so prior to any discussion, approval and adoption of the constitution. It was suggested that of all of the steps taken to form the ESSA, the timing of the signing of membership evidence may cause the Board some concern. In Local 199 UAW Building Corporation, [1977] OLRB Rep. July 472, employees became members prior to discussing and adopting the constitution. The Board referred to a number of cases where the Board found that there is no defect as long as the signing of members and the approval and the adoption of the constitution occurred at the same meeting. Since in this case all of the necessary steps were carried out in a single meeting, strict adherence to the technically proper sequence of evidence is not mandatory. On the basis of all the evidence, the Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
CUPE and the Ottawa Board both take the position that the application for certification is untimely. Simply put, the issue raised by the parties is what effect, if any, does the extension of a collective agreement by operation of section 35 of the Social Contract Act, 1993 ("SCA") have on the "open period" for the extended collective agreement. The parties agreed on the facts relevant to the timeliness issues. Those agreed upon facts are as follows:
(1) CUPE and the Ottawa Board entered into a collective agreement for the period of August 1, 1992 to March 31, 1994.
(2) By letter dated November 30, 1993, CUPE gave notice to bargain for the renewal of the collective agreement.
(3) On January 31, 1994, the "open period" began as provided for in the Act.
(4) On February 16, 1994 CUPE served notice on the Ottawa Board for an extension of the collective agreement to March 31, 1996 pursuant to section 35 of the SCA. The Ottawa Board confirmed the extension on February 21, 1994.
(5) The ESSA filed its application for certification on Feburary 28, 1994.
(6) The decision to give notice to extend the collective agreement was made by Local 1400's executive board. The timing of the extension was influenced by the organizing activity of the ESSA. A CUPE membership meeting was scheduled for March 1, 1994. A vote to ratify the executive board decision to extend the collective agreement did not take place at this meeting as intended since there was no quorum.
In essence, the ESSA's application for certification was made during the "open period" when the collective agreement expired on March 31, 1994. However, CUPE gave notice to extend the collective agreement to March 31, 1996 prior to the filing of the application for certification.
The SCA is described in the statute as:
An Act to encourage negotiated settlements in the public sector to preserve jobs and services while managing reductions and expenditures and to provide for certain matters related to the Government's expenditure reduction program.
- I was referred to the following provisions of the SCA:
The purposes of this Act are:
To encourage employers, bargaining agents and employees to achieve savings through agreements at the sectoral and local levels primarily through adjustments in compensation arrangements.
To maximize the preservation of public sector jobs and services through improvements in productivity, including the elimination of waste and inefficiency.
To provide for expenditure reduction for a three-year period and to provide criteria and mechanisms for achieving the reductions.
To provide for a job security fund.
34.-(1) Nothing in this Part alters the termination date of a collective agreement.
(2) Nothing in this Part interferes with any right to carry on collective bargaining so long as any collective agreement reached is not inconsistent with this Act.
35.-(1) A bargaining agent may, by written notice to the employer of employees to whom this Part applies, require that a collective agreement be extended to March 31, 1996 if this agreement was or is governed by an Act that permits the employees to strike.
(2) The notice may be given before or after the collective agreement expires.
(3) The giving of the notice extends an existing collective agreement or, in the case of a collective agreement that has expired, revives and extends the expired agreement to March 31, 1996.
(4) This section applies despite subsections 34(1) and (2) and is subject to,
(a) regulations excluding from the application of this section collective agreement provisions respecting staffing levels or workplace restructuring; and
(b) subsections 24(4) to (9).
(5) This section is not limited to collective agreements that expire after June 14, 1993.
The provisions of this Act and the regulations prevail over the provisions of any other Act and the regulations thereunder but only to the extent necessary to carry out the intent and purposes of this Act.
I was directed to the following provisions 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.
(5) Where a collective agreement is for a term of 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 thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation, as the case may be.
57.-(1) If the trade union that applies for certification under subsection 5 (4), (5) or (6) is certified as bargaining agent for any of the employees in the bargaining unit defined in the collective agreement, the trade union that was or is a party to the agreement, as the case may be, forthwith ceases to represent the employees in the bargaining unit determined in the certificate and the agreement ceases to operate in so far as it affects such employees.
The positions of the parties can be briefly summarized as follows. Counsel for CUPE argued that section 35 of the SCA extends collective agreements and not merely the terms and conditions of those collective agreements in contrast to the circumstances in Re Service Employees International Union and Broadway Manor, (1984) 48 OR. (2d) page 226. Once CUPE gave notice to extend the collective agreement, the collective agreement between CUPE and the Ottawa Board had an expiry date of March 1996, making the application for certification untimely. CUPE took the position that there is no conflict between the SCA and the Labour Relations Act and alternatively it argued that the postponement of the "open period" along with extension of the collective agreement was in accord with the intent of the SCA. Counsel argued that section 35 of the SCA demonstrates the intention of the Legislature to offset the imbalance in bargaining power which would occur when a union is prevented from bargaining on the issue of monetary increases. In part, the intent of the SCA was to preserve as far as possible the collective bargaining process and the status of the incumbent bargaining agent. Counsel for CUPE took the position that the "open period" would occur during the 35th and 36th month of the extended collective agreement.
Counsel for the Ottawa Board agreed that the application for certification was untimely but also took the position that the "open period" would occur only during the last two months of the extended collective agreement. Counsel argued that there is a conflict between the SCA and the Labour Relations Act and that the SCA must be given primacy. Given that the SCA has taken away free collective bargaining, it was suggested that it was not inconsistent that section 35 of the SCA might also infringe on representation rights. Counsel argued that the effect of section 35 of the SCA is to extend the collective agreement to preserve the status quo and to protect the bargaining agent. There is a conflict between section 35 of the SCA and section 57(1) of the Labour Relations Act. If the Board were to issue a certificate to the ESSA the result would be the cessation of the extended collective agreement. Given section 52 of the SCA it was argued that the SCA must prevail by ensuring that the extended collective agreement continues to run until its termination in March 1996.
In support of its position that the application for certification was timely, counsel for ESSA made a number of arguments. He argued that in essence the notice to extend the collective agreement was not effective since the membership did not ratify the executive board's decision. It was also argued that by giving notice to bargain and taking advantage of the bargaining provisions under the Labour Relations Act, it was not open to CUPE to give notice under section 35 of the SCA to extend the collective agreement. Counsel for the ESSA also argued that both statutes can be construed so that the purposes of both can be accomplished without taking away the rights of employees under the Labour Relations Act. The SCA's purpose is unrelated to labour relations issues while the Labour Relations Act addresses the rights of employees to select a bargaining agent. Counsel argued that by providing for the extension of collective agreements, the Legislature was not attempting to protect bargaining agents. If the Legislature had such an intention it would have expressed such an intention clearly. The Board was asked to reach the same conclusion that Board Member Wightman reached in The Corporation of the City of Scarborough, [1994] OLRB Rep. Mar. 300. In that case the collective agreement between the relevant parties had expired on December 31, 1992. The application for certification was filed on November 22, 1993 in accordance with subsection 5(4) of the Labour Relations Act. On November 29, 1993 the incumbent notified the employer of its intention to extend this expired collective agreement as permitted by section 35 of the SCA. The Board found that the application for certification was timely when filed. The majority found it unnecessary to rule on the argument advanced by the employer that the intent and purposes of the SCA can always be carried out without interfering with employee representation rights as set out in the Labour Relations Act. In a concurring opinion Mr. Wightman added the following thoughts:
Section 52 of the Social Contract Act states that its provisions takes precedent[sic] over other statutes, "but only to the extent necessary to carry out the intent and purposes of this Act". The purposes of the Social Contract Act are expressly set out in section 1 of the statute and relate, generally, to expenditure reduction and control. They do not include, and can be carried out without, insulating [sic] trade unions or employers from the fundamental right of employees to express their views on trade union representation. Accordingly, I would have dismissed the intervenor's allegations for the further reason that the Social Contract Act does not purport to take precedent [sic] over employee representation rights set out in the Labour Relations Act.
The submissions of the parties raised two issues. The first is whether the application for certification was timely when filed on February 28, 1994. Secondly, if untimely, when could an application be made during the extended collective agreement.
I find that CUPE's notice to extend the collective agreement was an effective notice.
Section 35 provides that a bargaining agent may require a collective agreement be extended. Bargaining agents can make decisions in different ways and one common and valid way is by action of the local union executive board. There is no requirement in section 35 of the SCA that the local union membership decide whether or not to extend the collective agreement. Accordingly, the decision of Local 1400's executive board to extend the collective agreement is a decision of the bargaining agent within the meaning of section 35 of the SCA and the approval of the membership is not necessary. There is also no restriction on the right of the bargaining agent to give notice to extend the collective agreement. For instance, section 35 does not provide for the giving of notice only if notice to bargain had not previously been given. The provisions of the SCA and the Labour Relations Act do not lead one to the conclusion that the notice to extend the collective agreement under the SCA cannot be given when a bargaining agent had previously given notice to bargain. Indeed, section 35 suggests that the bargaining agent can give notice to extend at any time which would include after attempting to negotiate a new collective agreement. The fact that Local 1400 was aware of the ESSA's organizing drive and was partly motivated by this activity to give notice under section 35 of the SCA is also not a reason for finding that the notice was invalid.
In contrast to the provisions of the Inflation Restraint Act dealt with in the Broadway Manor case where only the terms and conditions of collective agreements were extended, section 35 of the SCA gives bargaining agents the option of extending collective agreements. When CUPE gave its written notice under section 35 of the SCA on February 16, 1994, its collective agreement with the Ottawa Board was extended to March 31, 1996. In effect then the collective agreement between the parties runs for a period of August 1, 1992 to March 31,1996 once CUPE gave its notice to extend. The scheme of the Labour Relations Act places considerable significance for employees and trade unions on the duration of collective agreements. By permitting a bargaining agent to unilaterally extend the term of a collective agreement the Legislature was undoubtedly aware of the significance of such a step.
As was suggested in argument, one should attempt to interpret the provisions of both statutes to ensure that the intent of the Legislature is achieved. Section 52 of the SCA provides that the provisions of the SCA prevail over the provisions of any other Act but only to the extent necessary to carry out the intent and purpose of the SCA. In other words, if a conflict exists between the SCA and the Labour Relations Act, the SCA will prevail only to the extent necessary to carry out the intent and purposes of that statute. When the application for certification was filed the ESSA was confronted with a situation where CUPE and the Ottawa Board were bound by a collective agreement which expired on March 31, 1996. There is merit to the submission of counsel for CUPE that when the application was filed by the ESSA there was no conflict between the SCA and the Labour Relations Act. The SCA, given CUPE's notice to extend, determined what the term of the collective agreement would be. Other than assuring that collective agreements are for a term of at least one year, the Labour Relations Act does not generally dictate the duration of collective agreements. The Labour Relations Act however does provide for periods of time, given the duration of particular collective agreements, for employees to make decisions affecting their bargaining agent. With the SCA affecting the duration of a collective agreement and with the Labour Relations Act generally providing for "open periods", it is difficult to see where in this instance there is a conflict between the provisions of the two statutes. Although the ESSA and employees had certain expectations given the duration clause of the collective agreement prior to CUPE's notice to extend, there is no reason not to give full effect to that provision in the SCA which provides for the extension of collective agreements. Accordingly, this application is untimely since it was filed at a time when no "open period" was present for the extended collective agreement.
In turning to the second question of when the extended collective agreement would come open, I find again there is merit to CUPE's submission that the "open period" would occur
during the 35th and 36th month of the extended collective agreement. Subsection 5(4) of the Labour Relations Act provides that for a collective agreement of a period longer than 3 years the "open period" would occur during the 35th and 36th months. If a displacement application was filed during the 35th and 36th month, and was successful, it is not entirely clear that a conflict would exist between the provisions of the SCA and the Labour Relations Act which would cause one not to give effect to the "open period". However, even if a conflict exists as argued by counsel for the Ottawa Board given that section 57(1) would provide for the cessation of the extended collective agreement, the mere existence of a conflict between the statutes does not mean that the SCA will prevail. As section 52 indicates, the SCA will prevail only to the extent necessary to carry out the intent and purposes of the SCA. The purpose clause of the SCA makes it quite clear that the purpose of the SCA is to reduce the deficit and there is no indication in the statute either explicitly or implicitly that one of the purposes of the SCA is to protect bargaining agents from displacement or termination applications. If the intention of the Legislature was to provide such protection for bargaining agents one would have thought that such an intention would have been expressed quite clearly. Even if the provisions of the two statutes conflict during the period of the 35th and 36th months of the extended collective agreement, the SCA provision would not prevail since removing the right of employees to change their bargaining agent is not necessary to carry out the intent and purposes of the SCA.
Accordingly, for the above reasons, this application for certification is dismissed.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.