[1997] OLRB REP. NOVEMBER/DECEMBER 1032

3999-96-FC; 0052-97-R Canadian Union of Public Employees, and its Local 3875, Applicant v. Native Child and Family Services of Toronto, Responding Party; Peter Menzies, Applicant v. Canadian Union of Public Employees, Responding Party v. Native Child and Family Services of Toronto, Intervenor

BEFORE: Gail Misra, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.

APPEARANCES: Judith McCormack, Gina Gignac and Joanne McKenna for CUPE, Local 3875; A. Craig, Bill McNaughton, A. P. Tarasuk and K. Richard for Native Child and Family Services of Toronto; C. J. Abbass, Peter Menzies and Robert Crawford for Peter Menzies.

DECISION OF THE BOARD; July 29, 1997

1. Board File No. 3999-96-FC is an application filed with the Board on February 27, 1997 by the Canadian Union of Public Employees and its Local 3875 (the "union") for direction that a first collective agreement be settled by arbitration, pursuant to section 43 of the Labour Relations Act, 1995. Board File No. 0052-97-R is an application for termination of bargaining rights, filed by Mr. Menzies on April 4, 1997, pursuant to section 63 of the Act. The first contract application was scheduled by the Board for hearing on March 17, 1997, and to continue day to day until it was completed. However, the parties adjourned that date on consent, and asked the Board to set dates beginning in the week of April 21 to 25, 1997. By this adjournment, the parties are taken to have waived their right under section 43(2) of the Act to have the application decided within 30 days of the date of application to the Board.

2. By a decision in Board File No. 0052-97-R, dated April 11, 1997, the Board (panel differently constituted) directed that a representation vote be held, that the ballot box be sealed, and that the termination application be heard with the first contract application. These matters came on for hearing on April 23, 1997, at which time counsel for Mr. Menzies requested an adjournment on the basis that he had only received the materials pertinent to the first contract case that morning. The Board ruled that it would adjourn for the remainder of the day to allow Mr. Abbass an opportunity to review the materials.

3. The hearing resumed on April 24, 1997. At that juncture the Native Child and Family Services of Toronto (the "employer") informed the Board that it was prepared to accept the union's proposed collective agreement, tendered as part of its first contract application. The employer had signed back the union's proposed collective agreement, and argued that since the parties had effected a first collective agreement, the union's application for a direction that a first collective agreement be settled by arbitration was moot. The employer argued that the matter should be terminated as there was no longer anything in dispute between the parties. If the union claimed that its proposed collective agreement was not a collective agreement, but an offer, then the employer accepted that offer, and it would be bad faith bargaining for the union to claim it was now withdrawing that proposal. The employer claimed it had decided not to carry on fighting this application as it is a non-profit organization which cannot afford to undertake this litigation. It argued that it is a continuing prerequisite to the Board's jurisdiction in section 43 applications that the parties are unable to reach a collective agreement. Once that is no longer the condition, the employer argues the Board no longer has jurisdiction.

4. The termination applicant argued that if the first contract application was settled, its application should proceed and that the Board should count the ballots cast in that application. It argued that the Board could then hear the union's allegations about the conduct of the vote. However, it was pointed out that the union had made no allegations pursuant to section 63(16) of the Act that the employer or anyone acting for the employer had initiated the application, or engaged in threats, coercion, or intimidation in connection with the termination application. The termination applicant invited the Board to exercise its discretion under section 96(4) of the Act not to inquire into the union's allegations at all, as it was argued that given the nature of the allegations, no purpose would be served by doing so.

S. The union argued that pursuant to the opening words of section 43(2) of the Act, once an application has been made, the Board has no discretion not to consider the first contract application, and must decide the issues in dispute. It was suggested that the Board would he declining its jurisdiction not to hear and determine the issues raised in the section 43 application if it decided not to proceed. The union argued that the act of signing the union's proposed collective agreement was simply a fact suggesting that the employer had changed its bargaining position after the date of application. Since, it was argued, the Board does not consider post-application date evidence, the union suggested the Board should not pay any attention to what the employer purported to have done. The union characterized its proposed collective agreement simply as an offer, and the employer's acceptance of the union proposal as simply a "new offer on the table" pursuant to settlement discussions between the parties. As settlement discussions, the union argued that these discussions should not be admissible before the Board as they are discussions undertaken "without prejudice" and after the date of application.

6. It was the union's position that the employer had prolonged bargaining for so long that a termination application had been filed. The undisputed chronology of events was that the union had been certified on October 23, 1995. Bargaining carried on until the union applied for direction that a first collective agreement be settled by arbitration on February 27, 1997. A hearing was scheduled to begin on March 17, 1997, but on March 11th the employer requested an adjournment, and the union consented. On March 13th an application for termination of bargaining rights was filed, which was subsequently withdrawn on April 11, 1997. A second termination application, the subject of this proceeding, was filed on April 4, 1997. Hence, the union argued, as a result of the employer's conduct an issue about the union's bargaining rights had arisen, and that is a reason for the Board to hear the merits of the section 43 application.

7. It was suggested that the original date scheduled for a hearing of the section 43 application was March 17, 1997, and the hearing was to continue day to day until completed. According to the union, it was therefore conceivable that the matter could have been heard and completed before the termination application had been filed on April 4,] 997. The Board did not consider this argument to be of much assistance as the parties had agreed to adjourn that date and to argue what would have happened had the hearing proceeded would be purely speculative.

8. Having considered the submissions of the parties the Board ruled orally as follows:

Having heard the submissions of the parties, the Board is of the view that as a result of the employer signing the union's proposed collective agreement, the parties appear to have reached a proposed collective agreement. Pursuant to section 44(1) and (3) of the Act, this proposed collective agreement will now have to be put to a vote by the employees of the bargaining unit.

The Board is adjourning these matters until Friday May 2, 1997, to allow a ratification vote to be held. If this is insufficient time, the union is to inform the Board and the parties of when the ratification vote will be completed. This matter is therefore adjourned.

9. When the Board reconvened the hearing on May 2, 1997 it was informed that a ratification vote had been held, without prejudice to the union's position that it should not have been held. The employees of the bargaining unit had voted on April 28, 1997 to accept the proposed collective agreement, with 15 votes for the proposal and 5 against.

10. The following are our reasons for our oral ruling of April 24, 1997.

11. Sections 43(1), (2), and (23) of the Labour Relations Act, 1995 state:

43. (1) Where the parties are unable to effect a first collective agreement and the Minister has released a notice that it is not considered advisable to appoint a conciliation board or the Minister has released the report of a conciliation board, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration.

(2) The Board shall consider and make its decision on an application under subsection (I) within 30 days of receiving the application and it shall direct the settlement of a first collective agreement by arbitration where, irrespective of whether section 17 has been contravened, it appears to the Board that the process of collective bargaining has been unsuccessful because of,

(a) the refusal of the employer to recognize the bargaining authority of the trade union;

(b) the uncompromising nature of any bargaining position adopted by the respon­dent without reasonable justification;

(c) the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or

(d) any other reason the Board considers relevant.

(23) Despite subsection (2), where an application under subsection (1) has been filed with the Board and a final decision on the application has not been issued by it and there has also been filed with the Board, either or both,

(a) an application for a declaration that the trade union no longer represents the employees in the bargaining unit; and

(b) an application for certification by another trade union as bargaining agent for employees in the bargaining unit,

the Board shall consider the applications in the order that it considers appropriate and if it grants one of the applications, it shall dismiss any other application described in this section that remains unconsidered.

12. A "No Board" report had issued on January 28, 1997, thereby informing the parties that a Board of Conciliation would not be appointed to address the dispute between the union and the employer in this case. On February 27, 1997, when the union filed its application for a first contract direction, the parties had not been able to effect a first collective agreement. Hence, on the date of application, the provisions of section 43(1) of the Act had been satisfied.

13. The current termination application was filed on April 4, 1997, long after the filing of the first contract application. No final decision had been issued when this latter termination application was filed. Pursuant to section 43(23) of the Act, in these circumstances the Board considers the applications in the order that it considers appropriate, and if it grants one of the applications, it shall dismiss any other application which remains unconsidered. Before the Board even considered what the order of proceeding should be, and prior to the calling of any evidence on the first contract application, the employer agreed to sign the union's proposed collective agreement, which the union had filed with its application for first contract direction.

14. Rule 67 of the Board's Rules of Procedure requires that an application for first contract arbitration must include "a copy of a proposed collective agreement that the applicant is prepared to sign". This document is delivered to the responding party as part of the application. In its response, the responding party must also include "a copy of a proposed collective agreement that the responding party is prepared to sign" (see Rule 69(h)). The Board requires that the parties turn their attention to these matters before commencing upon a course of litigation in the hope that the parties will consider carefully their respective positions. It also gives each party an opportunity to evaluate the other's proposed collective agreement to see whether they can live with it, and thereby settle their dispute without resort to litigation.

15. In this instance the employer filed its response on March 25, 1997, and included its proposed collective agreement. It decided on the second day of the hearing, almost two months after the filing of the application, that it was prepared to accept the union's proposed collective agreement. While the union asked the Board to ignore this action taken by the employer, the Board saw no labour relations purpose being served by the continuation of litigation in the face of an employer accepting that which the union had claimed it was prepared to sign as a collective agreement.

16. In the intervening period of two months, between the filing of the application and the employer's acceptance, there had been no strike or lock-out, or any other matters which the union drew to the Board's attention to suggest that the union had withdrawn its proposal due to a change in circumstances. It is noteworthy that the union had submitted a corrected proposed collective agreement on April 11, 1997, which was the proposal that the employer actually accepted. Thus, the union proposal had been updated within the two weeks prior to the employer's acceptance thereof. No meaningful collective bargaining or litigation event occurred in the intervening period.

17. The union indicated to the Board that because the employer had informed it, in settlement discussions, that the union's proposal may result in lay-offs, the proposal should be considered to be withdrawn. Quite apart from the concern the Board has with the appropriateness of the union seeking to introduce before the Board the content of discussions which the parties had, at the behest of the union, specifically undertaken on a "without prejudice" basis, even if true and even if the union could raise and rely upon this fact, it does not lead to the conclusion that the union's proposed collective agreement had been withdrawn. If anything, the fact that the employer advised the union of its concern that the current proposal would lead to lay-offs, and the absence of any response from the union changing its position, suggest that the union's proposal at the time remained outstanding.

18. After those submissions, and as noted earlier, the employer offered to meet with the union prior to signing the proposed collective agreement to discuss this issue, but the union refused. In an effort to encourage the parties to settle this matter, the Board suggested that the parties meet over the lunch break to discuss any matters they might wish to. However, the Board was informed that the parties did not meet prior to the employer signing the proposed collective agreement and giving it back to the union.

19. In Great Lakes Community Credit Union Limited, [1991] OLRB Rep. June 758, the Board considered whether it would consider negotiating evidence after the date of the filing of an application for first contract direction. The employer in that instance wished to submit evidence of negotiations which had occurred after the application had been filed. The union argued that the situation would never crystallize if a party was permitted to introduce post-application evidence, and furthermore, that a party could create self-serving evidence after an application was filed, knowing that it could rely on such evidence in the hearing. The Board adopted the union's argument in that case to find that there had to be a "cut-off' point so that the parties to litigation would know what they had to prepare for hearing. That point was the date of application.

20. In the case before us there was no issue of the employer seeking to lead some evidence of positions it had taken after the application date. However, it was seeking to inform the Board that it had accepted without exception the union's proposed collective agreement. Even after one party has filed a section 43 application, the parties are under a statutory obligation to make reasonable efforts to reach a collective agreement. In this case the Board was satisfied that there was no evidence that the union's proposal had been withdrawn and that the employer had accepted what the union wanted and proposed. It was in all of these circumstances that the Board made its oral ruling that the parties appeared to have reached a proposed collective agreement. They had, to use the statutory language of section 43(1) of the Act, "effected a first collective agreement".

21. While this collective agreement had been reached in the context of a first contract applica­tion, it was not as a result of the Board having made a direction pursuant to section 43(2) of the Act. The union did not argue that the Board should, subject to section 44(2)(a) of the Act, impose the collective agreement by order of the Board. The Board was therefore of the view that the proposal would have to be made subject to ratification by the union membership, pursuant to section 44 of the Act.

22. It was for all of the above reasons that the Board made the ruling of April 24, 1997, set out in paragraph 8 above.

RECONSIDERATION

23. On May 22, 1997 the applicant filed a request for reconsideration of this ruling, the reasons for which we have provided above.

24. From a review of the applicant's lengthy submissions it is apparent that the applicant simply thinks the Board was wrong in making the ruling it did because the applicant believes the Board, in reaching its decision, applied contract principles which the applicant considers inappropriate in the circumstances of this case. The union argues that a collective agreement is not a contract but a unique form of agreement which owes its existence to a statutory regime which operates regardless of contract doctrine. The union suggests that the contract law concepts of offer and acceptance should not apply in the circumstances, and that the Board should not have been led to the conclusion that there was a contract as a result.

25. The union also argues that when one party has made a proposal and subsequently the other accepts that proposal over the objections of the first party, the Board considers whether the first party was entitled to change its position. In doing so, the Board will consider the amount of time elapsed and intervening circumstances which may have given rise to the change of position. The union relies on Toronto Jewellery Manufacturers' Association, [1979] OLRB Rep. July 719, wherein the Board found that an employer's last offer which the union purported to accept had expired, even though it was never explicitly withdrawn, as a result of the passage of time and the fact that the union had gone on strike. The Board held that the parties may be legitimately entitled to change their minds because of intervening events such as a strike. The union also relies on Pine Ridge District Health Unit, [1977] OLRB Rep. Feb. 65, where the Board recognized that a party may wish to change its position at the bargaining table due to the passage of time and changed circumstances. The Board stated that "the party opposite cannot be taken to be unaware of the increasing likelihood of that happening with the passing of each successive day and week". In that case the employer had been permitted to change its mind because its views about a particular proposal had changed as a result of an arbitration award.

26. The union again submits it changed its mind because the employer had indicated to it that the union's pension proposal may lead to lay-offs, and that the employer therefore wanted to discuss this with the union. The Board has earlier outlined its concerns about the union's articulation of this reason as it would appear that the union became aware of this employer position in the course of ''without prejudice'' and ''off the record'' discussions with the employer prior to the hearing commencing on April 24, 1997. The union has not suggested that it formally withdrew its proposal for a first collective agreement prior to the employer accepting the proposal at lunch time on April 24, 1997, but it is arguing that the circumstances changed as a result of the employer's imparting of the above-noted information, so that the proposal should have implicitly been considered to have been withdrawn.

27. Counsel for the union, in the reconsideration application, has referred to and relied upon discussions which all counsel and the Board had in an in camera and "off the record" session. We do not intend to address the substance of counsel's submissions insofar as they rely upon matters discussed only in camera. The Board has a long-established practice, well-known and accepted in the labour relations community, of occasionally meeting with counsel for all parties in closed and in camera sessions to attempt to settle matters, narrow issues, or in order to facilitate the smooth conduct of a hearing. It is understood in the labour relations community that anything said by counsel or the Board in these sessions will not be recited and relied upon by counsel in the hearing (unless there is a concern with the process itself; for example, a natural justice concern) or by the Board in reaching its decisions, and that only submissions made or evidence led in the course of the open session of the hearing will be considered in Board deliberations. Hence, we have not considered the union's submission as it relates to counsel's "off the record" discussions with each other and with the Board.

28. It is argued by the union that it did not sign the proposed collective agreement which had been included with its application for first contract direction, and indeed there was no signature page with the proposal. Hence, when the employer signed it, that could not constitute a collective agreement. While the union agrees that a proposed collective agreement has to be ratified by the members, the union questions the Board's jurisdiction to direct the holding of a ratification vote in this instance. Since there was no collective agreement, the union argues that the Board should not conclude that the collective agreement is valid and effective because of the membership's ratification thereof.

29. Pursuant to section 114(1) of the Labour Relations Act, 1995 the Board has a broad discretion to reconsider any decision or order made by it and to vary or revoke any such decision or order. However, the Board has repeatedly indicated that it will not reconsider its decisions unless there are good reasons for doing so. This approach furthers the interest of finality in Board decision-making and, in practical terms, discourages parties from seeking to delay the implementation of Board orders. The Board has been prepared to reconsider an earlier decision or order where that decision contains an obvious error; where the request raises important policy issues which have not been adequately addressed; where new evidence is sought to be presented which could not, with the exercise of due diligence, have been obtained and presented previously and which could, if accepted, make a difference to the decision; and where representations are sought to be made which the party had no previous opportunity to make.

30. Having reviewed the union's submission regarding the reconsideration, it would appear that the union is seeking to re-argue its case. The arguments being made by the union were available to it on April 24th, and indeed, some of the same arguments were made at that time. Had the union wished to have an adjournment to prepare its argument more fully at that time, it could have made a request to that effect. However, it did not do so. The reconsideration request, except as it relies upon matters discussed "off the record" (which we have dealt with above), argues matters raised at the hearing, or which readily could have been. We see no reason to reconsider on this basis, and accordingly, the reconsideration request is therefore dismissed.

STATUS OF THE RATIFICATION VOTE

31. On May 2, 1997, when the hearing had reconvened following the ratification vote, the union suggested that there were two issues arising out of the previous day of hearing: 1) that it wished to apply for reconsideration of the Board's previous ruling about the parties having reached a proposed collective agreement (which request we have now dealt with); and, 2) how the first contract application should be handled. Following discussions between the parties, the Board was asked to decide whether the ratification vote has rendered the termination vote null and void. The union retained its right to make any other arguments it wished after the Board has ruled on this issue. The balance of this decision deals with this issue.

32. Counsel for Mr. Menzies, the applicant in the termination application, suggests that there is no first contract application remaining before the Board because the employees have ratified a first collective agreement. Hence, in his view, the termination application is the only outstanding matter. Although the employees ratified - and therefore have - a collective agreement, that is of no consequence because the Board, pursuant to section 63(18) of the Act has the power to declare that a collective agreement ceases to operate when it declares a termination of bargaining rights.

33. In anticipation of the union argument that the Board should consider that the situation in this workplace has changed because of the acceptance of the collective agreement, Mr. Abbass argues that the ratification vote and the termination vote are completely different, and that the ratification vote cannot be said to be a substitute for the termination vote. In any event, Mr. Abbass suggests that the union has not made any allegations that the negotiation problems have contributed to or led to the filing by employees of the termination application.

34. With respect to the status of the first contract application, counsel for the employer adopted Mr. Abbass' submissions, and stated that no legal issue remains in that application and the Board is without jurisdiction to deal with the section 43 application.

35. As regards the ratification vote, the employer argues that that vote is an expression of employee wishes to their union and employer, and is not to be taken as any expression to the Board of the employee views on the termination application. In any event, the question posed in the termination vote was different than that posed in the ratification vote, so that the ratification vote cannot vitiate the termination vote.

36. The union argues that the resounding vote for the proposed collective agreement is an unmistakable result which the Board should not ignore. It argues that whatever the employees may have voted in the termination vote, this is the most recent expression of their wishes. The union draws the Board's attention to the timing of the earlier vote which was taken in the context of a bargaining unit which had been certified in October, 1995, and had been without a collective agreement for so long.

37. The union draws the Board's attention to the fact that the first contract application was filed long before the termination application. The union's proposed collective agreement was a required part of the section 43 application, although the union had filed an amended proposed collective agreement on April 11, 1997. Now the employer has, in the context of the first contract application hearing, seemingly settled this application by accepting the union's amended collective agreement proposal. The union notes that the termination applicant has been present at these proceedings and has not demurred to the employer acceptance of the union's proposal or to the holding of the ratification vote. Thus, the union argues, the termination applicant has agreed with the first contract being reached.

38. Since changes to the Act in 1995, employees have been given the right to vote by secret ballot on the ratification of collective agreements. In this ratification vote there are no allegations that the vote was not held as envisaged by the Act. Hence, the union argues, the Board ought to see the ratification vote as the latest expression of employee wishes about whether they want the union or not. The union suggests that by accepting the proposed collective agreement, the employees are saying they want the union to represent them in the administration of the collective agreement.

39. The union also argues that the collective agreement contemplated under section 43 of the Act is a two-year agreement to ensure that the parties to a first collective agreement have two years of labour peace and a chance to become more familiar with each other and the state of being unionized. The union relies on section 43(19) of the Act which states:

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 16.

It is the union's further argument that this provision overrides section 63(18) of the Act which says that a collective agreement ceases to operate after the Board declares that a termination application has been successful.

40. The union suggests that the Board has the discretion to decide whether the termination application is timely, based on the date of the first contract application when the union made the collective agreement proposal.

41. It is further argued that the Board also has the discretion, pursuant to section 111(2)(k) of the Act, not to entertain the termination application as it is the second such application filed by this applicant. The Board does not intend to address this argument as it was made by the union prior to the Board ordering a vote, and the Board (panel differently constituted), in its decision of April 11, 1997, dismissed this argument. The union did not seek reconsideration of that decision and it is not open to it to attempt to re-argue this issue before this panel of the Board.

42. Relying on section 111(2)(e) of the Act, the union argues that the Board does not have to open and count the ballots cast in the termination application, but can accept instead the undisputed evidence of the ratification vote as the most recent expression of the employees' wishes which is before the Board. Section 111(2)(e) states:

(2) Without limiting the generality of subsection (1), the Board has power,

(e) to accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not;

43. The union urges the Board to exercise its discretion and labour relations expertise to adjourn the termination application to the open period in the term of the first contract, and to then decide what is to be done with that application. It is argued that the earlier panel of the Board simply voted and sealed the ballot box in the termination application to preserve all options and to postpone the decision on that application. Just as the employer argues that subsequent events have changed the Board's jurisdiction in the first contract application, the union argues that the same can be said for the termination application - which heretofore had been filed after the first contract application, and is now alleged to be timely because of the employer's timing in accepting the union's proposed collective agreement.

44. Having considered all of the submissions made, the Board finds that it cannot view the ratification vote as an expression of employee wishes on the termination application. In the ratification vote the employees were being asked to indicate whether they accepted the proposed collective agreement or not. The Board is not in a position to guess at what may have motivated the employees to vote one way or the other on this issue, and must simply, in the absence of any allegations regarding the holding of the vote, accept that the membership voted in favour of ratifying the proposed collective agreement. That vote was not a Board-conducted vote.

45. A vote in a termination application is a Board-conducted vote which asks the employees of a bargaining unit whether they wish to continue to be represented by the trade union or not. In the circumstances of this case the Board cannot find that the ratification vote served the same purpose as a termination vote. The Board has already conducted a representation vote in the termination application, but has sealed the ballot box, as the panel of the Board which ordered the vote was of the view that this panel should decide the order of proceeding of the two applications (paragraph 7 of the April 11, 1997 decision).

46. While the Board does have the broad discretion adverted to in the union's argument regarding section 111(2)(e) of the Act, we do not believe this is a situation in which we should exercise that discretion. The employees' ratification vote is not "oral or written evidence" of the sort contemplated by the section. We are of the view that the legislation provides the Board with the discretion to accept such things as hearsay evidence, which may not be admissible in a court of law. However, to accept a ratification vote as a termination vote goes far beyond the scope of an evidentiary ruling.

47. The question remaining before the Board is the status of the first contract application and the termination application. While the employer and the termination applicant made some submissions in this regard, the union only addressed itself to the issue which the parties had agreed would be decided by the Board, namely, whether the ratification vote should be construed as a more timely representation vote for the purposes of the termination application. Prior to ruling on this remaining issue the Board is of the view that the parties should be given an opportunity to make any submissions they wish with respect to how the Board should decide the status of the two applications.

48. The union is directed to make its submissions within 10 days of the date of this decision. The responding party and intervenor will then have 10 days to respond. The union reply should be filed within 5 days of the responses being filed. Each party is directed to deliver to each other and to the Board a copy of its submissions by the deadlines outlined above. Upon the expiration of the deadlines the Board will consider these applications further.