Office and Professional Employees International Union v. Dryden District Roman Catholic Separate School Board, 1996 CanLII 11167

[1996] OLRB REP. JANUARY 1

2686-95-R Office and Professional Employees International Union, Applicant v. Dryden District Roman Catholic Separate School Board, Responding Party

BEFORE: Laura Trachuk, Vice-Chair, and Board Members O. R. McGuire and P. V. Grasso.

DECISION OF THE BOARD; January 5, 1996

1. This is an application for certification which was filed with the Board on October 11, 1995. On November 6, 1995 the Board (differently constituted) certified the applicant for a bar­gaining unit of employees of the responding party described as follows:

all employees of the Dryden District Roman Catholic Separate School Board in the District of Kenora, save and except Superintendents, persons above the rank of Superintendent, Teachers, Occasional Teachers, the Executive Secretary to the Director of Education, and pending resolu­tion by the Board, excluding as well, the Secretary to the Superintendent of Business.

2. The bargaining unit described above was certified pursuant to the Board's discretion under what was then section 6(2) of the Labour Relations Act and is now section 9(2). That section reads:

3. (2) Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the trade union's right to certification, the Board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bargaining unit.

[emphasis added]

3. On November 10, 1995, subsequent to the Board's decision but possibly prior to the parties' receipt of it, the Labour Relations Act, 1995 received Royal Assent. The "new Act" took retroactive effect as of October 4, 1995, and was accompanied by certain transitional provisions which might potentially have application to this matter. Those transitional sections are contained in the Labour Relations and Employment Statute Law Amendment Act, 1995 and provide:

4. (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.

[emphasis added]

4. The result of the above sections when read together, is that if the Board's decision to certify the union under section 6(2) was a final decision in the certification proceedings, then the Labour Relations Act, 1995 does not apply retroactively to this application, at least insofar as the right to certification is concerned. If the decision to certify was not a final one, then the "new Act" applies, and it might then be argued that the Board should reconsider its earlier certification deci­sion and hold a vote to ascertain the wishes of the employees with respect to the certification issue.

5. As a result of these legislative changes, the Board directed the parties to file written submissions "with respect to what, if any, application the transitional provisions" might have to this application. The Board has now reviewed the parties' submissions and the cases referred to therein. The Board has determined that the "transitional provisions" do not apply to this applica­tion, because the Board's decision certifying the union on November 6, 1995 was a final decision in this certification proceeding.

6. In our view, the meaning to be attributed to the term "final" must be considered in the context of the statutory framework of which section 9(2) is a part, having regard to the purpose that that section was designed to accomplish. Under the scheme of the Labour Relations Act that was in place until November 10, 1995, a trade union could be certified as the representative of a bargaining unit of employees, if it could show that more than 55% of the employees in that bar­gaining unit were its members or had applied to become its members. Certification turned upon a showing of support from a clear majority of the employees. Section 6(2) made it possible to certify the union as the representative of the employees even where there was an outstanding dispute about the precise description of the bargaining unit, providing there was no doubt that the union had the requisite level of membership support to be entitled to certification regardless of the dispo­sition of that dispute. The Board sometimes referred to this colloquially as certification "on an interim basis" because that is how the parties often referred to it. But those words do not appear in the statute and it is clear from both the language of section 9(2) and the general framework, that for the purposes of the Act, the decision to certify under section 9(2) is a "final" determination of the union's right to represent the named group of employees. Under what is now section 114 of the Act the certification determination is "final and conclusive for all purposes" and if a party believed that the Board had erred, it would have to either seek reconsideration of the decision under sec­tion 114(1) or apply for judicial review.

7. Under the "new Act", the Board retains the power to certify a trade union on the same basis as it did before (i.e. where the right to certification cannot be affected by the dispute about the bargaining unit perimeter), except that now the requisite level of support is 50% of those par­ticipating in a representation vote. The union can be certified as the representative of employees even if there is an outstanding dispute about the bargaining unit, so long as the ballots cast by the individuals, in the disputed positions cannot affect the outcome of the vote. The legislative inten­tion that minor disputes about bargaining unit configuration will not stand in the way of certifica­tion and collective bargaining has therefore not changed.

8. The present application is a case in point. In this case there was only one individual whose status was in dispute. The union's majority support, and thus its right to certification, did not turn upon the inclusion or exclusion of that individual. Accordingly, the Board certified the union and excluded the disputed person until that matter was either settled between the parties or dealt with by the Board itself. Whether or not the disputed individual was in or out of the unit (i.e. whether her functions were caught by section 1(3) of the Act), the union was "certified" to repre­sent the described bargaining unit, because its ultimate right to certification was not in issue. There was nothing tentative, provisional or conditional about that certification determination.

9. The "finality" of a certification under section 6(2) (now 9(2)) is obviously not an issue which the Board could previously have considered in the context of the current transitional provisions. However, the scheme of the Act is predicated upon the assumption that this kind of decision is final for statutory purposes, and that once certified the union assumes the role and responsibili­ties of bargaining agent. Indeed, the whole purpose of section 6(2) (added to the Act in 1975) was to permit a final certification decision to be made so that bargaining could get underway, even when there was an outstanding dispute concerning the bargaining unit description or composition.

10. Once a trade union is certified under section 9(2), it is entitled to give notice to bargain under section 16 of the Act. Upon certification, including certification under section 9(2), the par­ties have an obligation under section 17 to begin bargaining. The rest of the Act's provisions with respect to collective bargaining are also triggered: the parties are obliged to bargain in good faith; conciliation may be sought; a strike or lock-out may ensue; first contract arbitration may be applied for, and so on. Under the Labour Relations Act there is no difference between certification under what is now section 9(2) or under what is now section 10(1). In either case, the union is declared to be the exclusive bargaining agent for a named group of employees, and has all of the statutory rights, privileges and duties of a certified bargaining agent, including the duty of fair rep­resentation (section 74).

11. The power to certify under section 9(2) recognizes the need for expedition when a union and an employer enter into their new bargaining relationship and further that this relation­ship should not be delayed by an outstanding dispute which cannot affect it. (See University of Ottawa, [1975] OLRB Rep. Sept. 694 and Mississauga Public Library Board, [1976] OLRB Rep. Feb. 1.) The only respect in which anything flows from the issuance of the actual certificate is that the Board has held that the date upon which an application for termination may be filed is one year after it has issued. (See Comstock Funeral Home, [1982] OLRB Rep. Oct. 1436). The Board decided on the facts of that case that the parties could not actually enter into a collective agree­ment as long as the bargaining unit description was outstanding and that it would be prejudicial to the union for it to be subject to termination before it can even enter into a collective agreement. The Board's decision in Comstock, supra, therefore, is not inconsistent with the fact that the union's right to certification has been finally decided when it is certified under section 6(2) (now 9(2)). In any case, as the issue before the Board in Comstock, supra, was different than the one before us now, the Board need not assess the analysis therein or determine whether it remains applicable.

12. Unlike the Board, the Court has had numerous opportunities to decide when a decision is "final", and both parties referred us to that jurisprudence. (See Hendrickson v. Kallio 1932 CanLII 123 (ON CA), [1932] O.R. 675; Frederick et al v. Aviation & General Insurance Co. Ltd. 1966 CanLII 271 (ON CA), [1966] 2 O.R. 356; Delaney Boat Lines and Services Ltd. et al v. City of Barrie (1976) 1976 CanLII 709 (ON CA), 15 O.R. (2d) 675; Wigle et al v. Allstate Insurance Co. of Canada (1984) 1984 CanLII 45 (ON CA), 49 O.R. (2d) 101; Mackay et al v. Queen Elizabeth Hospital et al (1989) 1989 CanLII 4085 (ON HCJ), 68 O.R. (2d) 90; Buck Brothers Ltd. v. Frontenac Builders Ltd, (1994) 1994 CanLII 10560 (ON CTGD), 18 O.R. (3d) 97; Ball v. Donais (1994) 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322.) The Court (generally the Court of Appeal) has had to decide whether certain decisions are "final" or interlocutory in the context of deciding whether an appeal lies as of right or only with leave. If a decision is considered final, an appeal lies as of right.

13. The Court's approach as illustrated by the cases cited by the parties is that a "final deci­sion" in a proceeding is a decision which finally determines the central issue between the parties, or which finally determines one of the parties' substantive rights. On that approach, the Board's certification of a trade union pursuant to section 6(2) (now 9(2)) must be considered a "final" deci­sion, because the central issue in an application for certification is whether the trade union is enti­tled to represent the employees in the bargaining unit. A certification decision under section 9(2) settles that question. Once it has been determined that the bargaining unit issue cannot affect the right to certification and the certification decision is made, the outstanding unit dispute becomes collateral and subsidiary.

14. The determination that the trade union has sufficient support for certification and the consequent certification under section 9(2) is a final decision with respect to its substantive right to certification (as the words of sections 9(2) and 114(1) specify) and there can be no further adjudi­cation of that issue. Although as an administrative matter the Board has not typed and issued a for­mal "certificate" until the bargaining unit dispute has been resolved, the decision that the Board renders under section 6(2) (now 9(2)) does certify the applicant, which then assumes the role of certified bargaining agent.

15. In order to hold a vote in this matter as the employer now requests, the Board would have to reconsider its decision of November 6 certifying the union and revoke the applicant's certi­fication. That such further decisions would be necessary underscores the finality of the Board's ear­lier decision.

16. For all of the above reasons, the Board finds that this application is not affected by the transitional provisions of the Labour Relations Act, 1995.