Kim Hartsell v. United Steelworkers of America, 1996 CanLII 11143

[1996] OLRB Rep. May/June 495

3681-95-R Kim Hartsell, Applicant v. United Steelworkers of America, Responding Party v. Seeburn Division, Ventra Group Inc., Intervenor

BEFORE: Laura Trachuk, Vice-Chair, and Board Members 0. R. McGuire and R. R. Montague.

APPERANCES: Kim Hartsell for the applicant; Paula Turtle, Garnet Penny, Donna Campbell, Norm Blakeley and Janet Ward for the responding party; David M. Chondon, Bryan Gill, Mark Lawrie, Ruth Griepsma and Erin Ktizz for the intervenor.

DECISION OF THE BOARD; May 22, 1996

1. This is an application for termination of bargaining rights. In a decision dated February 2, 1996 the Board directed that a representation vote be held on February 6. The ballot box was sealed because the responding party (hereafter referred to as the “union") requested that the application be dismissed for untimeliness.

2. At a hearing on March 4, 1996 the Board dismissed the application by way of an oral ruling. The following are the reasons for that decision.

The Facts

3. The union was certified to represent the employees in the bargaining unit on December 1, 1994. It filed an application for first contract arbitration on July 6, 1995.

4. The first contract arbitration hearings were held on September 14, 1995 and October 10, 1995. On October 10, 1995 the parties were aware of the first draft of Bill 7 which became the Labour Relations Act, 1995 and which included proposed amendments to the first contract arbitration provisions of the previous legislation. The transition provisions of the Bill provided that a first contract arbitration commenced under the previous legislation would be terminated unless the parties agreed to continue it. The union and the intervenor (hereafter referred to as the "company") therefore entered into the following agreement:

"The parties agree that if this first agreement arbitration proceeding is continuing after the Labour Relations Act 1995 (Bill 7) comes into force, then this arbitration shall proceed in accordance with the Labour Relations Act as it reads immediately prior to the coming into force of Bill 7.

The parties further agree that in the event that further or other amendments to the Labour Relations Act come into force while this proceeding is continuing or before a decision has been issued that the first collective agreement arbitration provisions of the Labour Relations Act as it existed prior to any amendments coming into force shall govern this proceeding."

5. On November 10, 1995 the Labour Relations Act, 1995 received Royal Assent. On Decem­ber 5, 1995 the applicant filed a letter with the Board asking that a vote be held to terminate the union's bargaining rights. The Board requested that the applicant comply with the Board's procedures and file and serve an application in the proper form. The Board received that application on January 31, 1996.

6. In its response, the union took the position that the application should be dismissed because it is untimely in view of the parties agreement to continue with the first contract arbitration process. A representation vote was held on February 6 and the ballot box was sealed. As of the date of the hearing, the parties had not received the arbitration award.

Evidentiary Ruling

7. The company sought to call evidence with respect to the parties' discussions and intentions when entering the agreement set out in paragraph 4. The company wished to show that the parties entered the agreement pursuant to the transition provisions of the Act and had never discussed section 40. The union objected to the company calling this evidence, and claimed that the agreement spoke for itself. It asserted that as the agreement was unambiguous, evidence with respect to the parties' discussion surrounding its generation was not admissible. In any case, the union was prepared to agree that the parties did not discuss section 40 when they entered into the agreement.

8. The Board ruled that it would not admit the evidence the company was seeking to introduce. The document in question is clear on its face and unambiguous. Furthermore, the key fact which the company sought to establish through the evidence was conceded by the union. For these reasons, the Board found that the evidence the company sought to introduce would not aid in the determination of the dispute.

Submissions of the Parties

9. The union argued that the application was untimely as the parties' agreement to proceed with the first contract arbitration was an agreement for the purposes of section 40 of the Act. As an agreement under section 40 has the same effect as a collective agreement in making a termination application untimely, this application should be dismissed.

10. The company denied that this agreement to continue a first contract arbitration pursuant to the transition provisions of the Labour Relations Act, 1995 is an agreement for the purposes of section 40 and argued that it cannot therefore have the effect of making the application untimely. The company submitted that, although it was not trying to revoke the agreement, the parties would have been required to specify in writing that the agreement was irrevocable in order to meet the criteria of section 40. It argued that the agreement cannot have the effect of limiting the rights of the third party applicant to terminate the union's bargaining rights without specific legislative provision. The company referred to the following decisions: Re.' Grey-Owen Sound Health Unit (1979) 1979 CanLII 1899 (ON CA), 24 O.R. (2d) 510; Re: Haldimand­ Norfolk Regional Health Unit (1981) 1981 CanLII 71 (ON CA), 31 O.R. (2d) 730; Re: Ontario Nurses Association (1983) 1983 CanLII 58 (SCC), 150 D.L.R. (3d) 193; Suedon Foods Ltd., [1995] OLRB Rep. Feb. 166; Ridgewood Industries, [1990] OLRB Rep. March 331.

11. The applicant argued that her application should not be found to be untimely because she had not been part of the agreement of the union and the company to continue with the arbitration.

Decision of the Board

12. The transition provisions of the the Labour Relations and Employment Statute Law Amend­ment Act, 1995 provide as follows:

13. (1) This section applies with respect to proceedings commenced under the old Act in which a final decision has not been issued on the day on which this section comes into force.

(2) A proceeding continuing after the new Act comes into force shall be decided as if the new Act had been in force at all material times. The presiding person or body shall apply the substantive provisions of the new Act as well as the procedural rules established under it.

(3) Despite subsection (2), the parties to a first agreement arbitration under section 41 of the old Act may agree in writing that the arbitration proceed in accordance with the old Act.

13. Section 4 1(23) of the "old" Act provided as follows:

41.-(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).

14. Section 40 of the Labour Relations Act, 1995 provides as follows:

15. (I) Despite any other provision of this Act, the parties may at any time following the giving of notice of desire to bargain under section 16 or 59, irrevocably agree in writing to refer all matters remaining in dispute between them to an arbitrator or a board of arbitration for final and binding determination.

(2) The agreement to arbitrate shall supersede all other dispute settlement provisions of this Act, including those provisions relating to conciliation, mediation, strike and lock-out, and the provisions of subsections 48(7), (8), (II), (12) and (18) to (20) apply with necessary modifications to the proceedings before the arbitrator or board of arbitration and to its decision under this section.

(3) For the purposes of section 67 and section 132, an irrevocable agreement in writing referred to in subsection (I) shall have the same effect as a collective agreement.

15. The issue before the Board can be framed as follows: Is this agreement to continue a first contract arbitration pursuant to the transition provisions of the Act an agreement for the purposes of section 40? An agreement under section 40 must be: a) an irrevocable agreement in writing; b) to refer all matters remaining in dispute between them to an arbitrator or board of arbitration; c) for final and binding determination. The parties' agreement to continue the first contract arbitration process under the transition provisions of the Act clearly meets these criteria. The transition provisions themselves specify that the agreement contemplated is an agreement for the arbitration to "proceed in accordance with the old Act". First contract arbitration under both the old and new Acts is a process by which all matters remaining in dispute are irrevocably referred to a board of arbitration for final and binding determination. The parties agreement therefore met the criteria of an agreement for the purposes of section 40. It is not necessary for parties to specify that they are entering an agreement for the purposes of section 40 as such agreements are determined according to the criteria outlined in the section.

16. First contract arbitrations under both the old and new Acts, as well as agreements under section 40 of the new Act (unchanged from section 38 of the old Act) have the legislated effect of making termination applications untimely. It has consistently been the policy of the Labour Relations Act, through numerous amendments, that if the parties enter the arbitration process to resolve their collective bargaining differences, either by agreement, Board, or Ministerial direction, the process is allowed to take its course without resort to economic sanctions, other mediation processes or the risk of termination of bargaining rights. The company conceded at the hearing that as a result of the parties' agreement, the union was not entitled to apply for mediation or conciliation or to strike. It claimed, however, that the effect of making a termination application untimely did not attach to this agreement. This inconsistency was explained by the claim that the right to file for termination of bargaining rights was an important third party right and could not be limited without express wording in the legislation.

17. Generally speaking, it may be true that third party rights cannot be affected by agreements between other parties. This general proposition is qualified, however, by specific statutory events or contexts in which such rights can and are so affected. As long as interest arbitration has been included in the Labour Relations Act, the Act has provided that the commencement of the interest arbitration process has the same effect as entering into a collective agreement, thus making resort to any of these other procedures untimely. The limitation of the third party right to terminate bargaining rights is therefore part of a statutory scheme which contemplates that by embarking on contract arbitration, the parties have taken steps to reach an agreement just as they would have if they entered into conciliation or mediation, both of which bar an application for termination of bargaining rights.

18. The transition provisions and the agreement both indicate that the first contract arbitration is to proceed "according to the old Act". According to the old Act, the initiation of an arbitration for first contract made an "application for a declaration that a trade union no longer represents the employees in the bargaining unit" of no effect. The Board's finding that this application is untimely is consistent with both the legislation and the agreement signed by the union and the company.

19. For all of the above reasons, the Board dismissed this application.

20. The Registrar will destroy the ballots cast in the 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.