United Steelworkers of America v. Royalguard Vinyl Co., A Division of Royplast Limited
[1995] OLRB Rep. March 349
4229-94-M United Steelworkers of America, Applicant v. Royalguard Vinyl Co., A Division of Royplast Limited, Responding Party
BEFORE: D. L. Gee, Vice-Chair, and Board Members Orval R. McGuire and H. Peacock.
APPEARANCES: Brian Shell, Mark Rowlinson and Fil Falbo for the applicant; Joseph Liberman, Doug Dunsmuir and Steve Cork for the responding party.
DECISION OF THE BOARD; March 14, 1995
1This is a reference from the Minister to the Board pursuant to section 109 of the Labour Relations Act (the "Act"). The reference relates to a request by Royalguard Vinyl Co., A Division of Royplast Limited (the "employer") for a final offer vote pursuant to section 40 of the Act, after first agreement arbitration had been initiated pursuant to section 41 of the Act.
2The terms of reference are as follows:
On December 6, 1994, the Union requested first contract arbitration in accordance with section 41(1.2) of the Labour Relations Act from the Minister. The request was received the same day.
The parties appointed nominees and both parties agreed on the Chair for the Board of Arbitration. Two hearing dates were also agreed to: February 6 and February 20,1995.
On February 6, 1995, the parties attended the first day of hearing before the Board of Arbitration. After some submissions, the hearing was adjourned to the next scheduled date.
By letter dated February 17, 1995, the Employer requested that the Minister proceed with a last offer vote in accordance with section 40 of the Act.
Like section 41, section 40 of the Act also requires the Minister to take action and as such the Minister has arranged that the Labour Relations Board take the preliminary steps to arrange a last offer vote. These steps are taken prior to the Minister directing the vote. A meeting to determine an appropriate vote date was scheduled for February 27, 1995.
The Union objected to the directing of a vote in a letter dated February 22, 1995. The Union argued that the Employer was barred from requesting a last offer vote because first contract arbitration had been initiated. Specifically, the Union claimed that once first contract arbitration had been initiated, section 41(13) prohibited a strike or lock-out. Thus, the section 40 requirement that a vote request be made "before or after the commencement of a strike or lock-out" could not be fulfilled because no strike or lock-out was possible at the time of the request for the vote.
Upon receipt of the Union's objection, the Minister decided to postpone the vote arrangements until the matter could be referred to the Labour Relations Board.
The Minister is of the view that it would be appropriate to refer to the Labour Relations Board the question of whether to proceed with a request under section 40 given that first contract arbitration under section 41 has been initiated, and given that there has not been a strike, nor can there now be a strike during first contract arbitration.
Pursuant to section 109 of the Act, the following questions are referred to the Labour Relations Board for its advice:
(i) Are there circumstances arising out of applications made pursuant to sections 40 and 41 of the Act where the reasoning in Isadore Roy Lumber Limited OLRB Rep. Sept. 1233, would not apply?
(ii) In light of the opening words of section 40, namely "before or after the commencement of a strike or lock-out", and given the recent Supreme Court of Canada's ruling in R. v. McIntosh Feb. 23, 1995 on the importance of the plain language interpretation of a statute, does section 41(13) act as a bar to requesting a last offer vote under section 40, where first contract arbitration has already been initiated?
- The Minister requests that this matter be dealt with in as expeditious a manner as possible.
3A hearing was held on March 8, 1995 to receive the parties' submissions on the issues raised by the reference. The facts relevant to the Board's determination are summarized in the Minister's reference. The provisions of the Act referred to by the parties in their submissions are as follows:
2.1 The following are the purposes of this Act:
To ensure that workers can freely exercise the right to organize by protecting the right of employees to choose, join and be represented by a trade union of their choice and to participate in the lawful activities of the trade union.
To encourage the process of collective bargaining so as to enhance,
i. the ability of employees to negotiate terms and conditions of employment with their employer,
ii. the extension of co-operative approaches between employers and trade unions in adapting to changes in the economy, developing
work force skills and promoting workplace productivity, and
iii. increased employee participation in the workplace.
To promote harmonious labour relations, industrial stability and the ongoing settlement of differences between employers and trade unions.
To provide for effective, fair and expeditious methods of dispute resolution.
Where, at any time after the commencement of a strike or lock-out, the Minister is of the opinion that it is in the public interest that the employees in the affected bargaining unit be given the opportunity to accept or reject the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties, the Minister may, on such terms as he or she considers necessary, direct that a vote of the employees in the bargaining unit to accept or reject the offer be held forthwith.
40.- (1) Before or after the commencement of a strike or lock-out, the employer of the employees in the affected bargaining unit may request that a vote of the employees be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties and the Minister shall, and in the construction industry the Minister may, on the terms that he or she considers necessary direct that a vote of the employees to accept or reject the offer be held and thereafter no further such request shall be made.
(2) A request for the taking of a vote, or the holding of a vote, under subsection (1) does not abridge or extend any time limits or periods provided for in this Act.
41.- (1) A first collective agreement shall be settled by arbitration in accordance with this section,
(a) if a party to the negotiations requests first agreement arbitration in the circumstances described in subsection (1.2); or
(b) if the Board makes a direction to that effect on an application under subsection (1.3).
(3) If first agreement arbitration is initiated, a board of arbitration composed of three members shall settle the first collective agreement between the parties.
(11) The board of arbitration appointed under this section shall determine all matters in dispute and release its decision within forty-five days of the commencement of its hearing of the matter.
(13) If first agreement arbitration is initiated, the employees in the bargaining unit shall not strike and the employer shall not lock-out the employees.
(13.1) If first agreement arbitration is initiated during a strike or lock-out, the employees shall forthwith terminate the strike and the employer shall forthwith terminate the lock-out.
(14) The requirement to reinstate employees applies despite the fact that replacement employees may be performing the work of employees in the bargaining unit, but subsection (13.1) does not apply so as to require reinstatement of an employee where, because of the permanent discontinuance of all or part of the business of the employer, the employer no longer has persons engaged in performing work of the same or a similar nature to work which the employee performed before the strike or lock-out.
(15) If first agreement arbitration is initiated, the rates of wages and all other terms and conditions of employment and all rights, privileges and duties of the employer, the employees and the trade union in effect at the time notice was given under section 14 shall continue in effect or, if altered before first agreement arbitration was initiated, be restored and continued in effect until the first collective agreement is settled unless the parties otherwise agree.
(16) Subsection (15) does not apply so as to effect any alteration in rates of wages or in any other term or condition of employment agreed to by the employer and the trade union.
(17) In arbitrating the settlement of a first collective agreement under this section, matters agreed to by the parties, in writing, shall be accepted without amendment.
(18) A first collective agreement settled under this section is effective for a period of two years from the date on which it is settled and it may provide that any of the terms of the agreement, except its term of operation, shall he retroactive to the day that the Board may fix, but not earlier than the day on which notice was given under section 14.
(23) An application for a declaration that a trade union no longer represents the employees in the bargaining unit is of no effect if it is filed with the Board after first agreement arbitration is initiated unless it is brought after the first collective agreement is settled and it is brought in accordance with subsection 58(2).
(24) An application for certification by another trade union as bargaining agent for employees in the bargaining unit is of no effect if it is filed with the Board after first agreement arbitration is initiated unless it is brought after the first collective agreement is settled and it is brought in accordance with subsections 5(4), (5) and (6).
4The union submits that the opening words of section 40, "[b]efore or after the commencement of a strike or lock-out", combined with the operation of section 41(13), which prohibits a strike or lock-out following the initiation of first agreement arbitration, means that a final offer vote cannot be held following the initiation of first agreement arbitration. If, following first agreement arbitration, there can no longer be a legal strike or a lock-out, it can no longer be said to be a time period "before or after a strike or lock-out". Hence, the precondition established by the opening words of section 40 cannot be met and a final offer vote is no longer available. Counsel submits that this result is mandated by the clear and plain meaning of the words of the statute.
5The union argues that its position is consistent with the purpose of section 40 of the Act. Relying on Wilson Automotive (Belleville Ltd.), [1980] OLRB Rep. Sept. 1337 and Canada Cement Lafarge Ltd., [1980] OLRB Rep. Nov. 1583, the union asserts that the purpose of section 40 is to provide for a final offer vote either during, or shortly before, a possible strike or lock-out. Given that section 41(13) operates to eliminate the possibility of a strike, and various subsections of section 41 stipulate that, once first agreement arbitration has been initiated the agreement "shall" be determined by the board of arbitration unless settled by the parties themselves (see 41(3), (11) and (18)), section 40 has no application. The union submits that, to permit a final offer vote in such circumstances would disrupt the first agreement arbitration process and could only serve to improperly influence the board of arbitration. Results which are contrary to the purposes of the Act as set out in section 2.1.
6The union argues that Isadore Roy, supra, is either distinguishable on its facts, as the request for a final offer vote preceded the initiation of first contract arbitration, or, is incorrect as a matter of law.
7The employer also takes the position that the opening words of section 40 are plain and unambiguous. It submits, however, that they do not impose any restriction on the application of the section, but rather, are the equivalent of "at any time". The employer submits that Isadore Roy, supra, is determinative of the issue.
8In support of its submissions, the employer points to the chronology of the enactment of various provisions. Section 39 of the Act, which permits the Minister to require a vote "at any time after the commencement of a strike or lock-out" was enacted in 1975. Section 40 was enacted (as section 34(e)) in 1980. The opening words of section 40 are thus in contrast to those of section 39. The words are not intended to constitute a precondition but rather a clarification that the restriction specified in the case of a Ministerial vote does not exist in the case of an employer requested vote. The employer further relies on the fact that section 41 was enacted (as section 40a) in 1986 and amended in 1992. Notwithstanding the existence of section 40 at the time of the enactment of section 41, the Legislature did not provide that section 40 was not available once section 41 had been invoked. Had the Legislature wished to do so, it would have used language similar to that utilized in sections 41(23) and (24). The employer submits that, not only does the Act not restrict a final offer vote following the invocation of section 41, but section 41(15) specifically preserves all rights of the employer in effect at the time notice to bargain was given inclusive of the right to request a final offer vote.
9The employer submits that both sections 40 and 41 are tools for resolving bargaining impasse and that there is nothing inconsistent with both proceeding simultaneously. A final offer vote is simply a step in the bargaining process. It is possible that a final offer vote may have the effect of resolving a collective agreement more expeditiously than first agreement arbitration. In the employer's submission, the only circumstance in which a final offer vote could not be held following the initiation of first agreement arbitration would be where, pursuant to section 41(18), a first agreement had been settled by the board of arbitration.
10In response, the union argues that section 41(15) must be read in the context of sections 41(13) and (14). Section 41(15) does not preserve all rights in toto but only those rights relating to terms and conditions of employment. In support, the union relies on the similarity in language between sections 41(15) and 81. The union submits that the Legislature was not required to specifically state that section 40 could not be invoked following the initiation of first agreement arbitration as the opening words of section 40 combined with section 41(13) render such an amendment unnecessary.
11The first question posed by the Minister is whether there are circumstances in which the reasoning in Isadore Roy, supra, would not apply. As indicated by the summary of counsel's argument set out above, it appeared to the parties, as it does to the Board, that the real question the Minister wishes to have resolved is, as indicated by paragraph 8 of the Minister's reference, whether an employer can request a vote under section 40 after first agreement arbitration under section 41 has been initiated. Having carefully considered the parties' submissions on this issue, it is our view that the Board's reasoning in Isadore Roy, supra, is not applicable in such circumstances. The reasons for our determination are as follows.
12We are not persuaded that the opening words of section 40 are the equivalent of "at any time". Such a construction would mean that an employer could request a final offer vote after the terms of a collective agreement had been settled when clearly it could not. The section is, at a minimum, restricted to periods when the parties are engaged in collective bargaining and thus cannot be invoked "at any time".
13In our view, the opening words of section 40 contemplate the availability of strike or lock-out activity and thus establish a precondition to an employer's right to request a final offer vote. Strike or lock-out activity must be available to the parties in order for an employer to request a vote under section 40. By operation of section 41(13), once first agreement arbitration has been initiated, strike or lock-out activity is no longer possible, thereby foreclosing the employer from requesting a final offer vote.
14We are confirmed in our view of the meaning of the opening words of section 40 by the section's purpose. As the Board has commented in Wilson Automotive, supra, and Canada Cement Lafarge Ltd., supra, the purpose of section 40 is to minimize industrial conflict. Section 40 is a mechanism for avoiding or ending a strike or lock-out. Once first contract arbitration has been initiated a strike or lock-out is no longer possible. The operation of section 41 eliminates the industrial conflict which section 40 is intended to minimize. Thus, following the initiation of first contract arbitration, a final offer vote no longer serves the purpose for which it was intended. Section 41 mandates that, once first contract arbitration has been initiated, the agreement shall be settled by the board of arbitration. In such circumstances, a final offer vote can only serve to disrupt the workplace, relations between the parties, and the first contract arbitration process, without serving any useful purpose.
15To the extent that our reasoning may be seen as a departure from that given by the Board in Isadore Roy, we note that the facts in issue in that case, were such that the final offer vote request was received by the Minister before the request for first contract arbitration. Thus, its comments about the absence of any scheme of priority as between the two types of requests must be seen as obiter. Further, we note that the argument advanced by the union in the instant case does not appear to have been before the Board in Isadore Roy.
16On the basis of the foregoing, we answer the Minister's questions as we understand them to relate to the facts presently in issue, as follows:
- (i) The reasoning in Isadore Roy, supra, does not apply when a vote is requested under section 40 of the Act after first contract arbitration under section 41 of the Act has been initiated.
(ii) We do not view the Supreme Court of Canada's ruling in R. v. McIntosh, Feb. 23, 1995 as of assistance to us. Where, as a result of the operation of section 41(13), a strike or lock-out is not legally possible, section 40 cannot be invoked due to the fact that the precondition to its operation, namely the availability of strike or lock-out activity, cannot be fulfilled.