[1997] OLRB REP. MAY/JUNE 373
3690-96-R Canadian Health Care Workers, Applicant v. The Corporation of the City of St. Thomas, Responding Party v. London & District Service Workers' Union, Local 220, Intervenor
BEFORE: M. A. Nairn, Vice-Chair, and Board Members J. A, Rundle and D. A. Patterson.
APPEARANCES: E. Coetzee for the applicant; Steven Wilson for the responding party; Stephen Krashinsky for the intervenor.
DECISION OF THE BOARD; June 4, 1997
1This is an application for certification. The applicant (the "C.H.C.W.") is seeking to displace the intervenor ("Local 220") as bargaining agent for a bargaining unit of employees of the responding party (the "employer"). A vote was held on February 21, 1997 and the ballot box sealed pending determination of certain issues in dispute.
2At the hearing the parties confirmed that the only remaining issue requiring determination by the Board prior to any counting of the ballots was the issue of the timeliness of the application. (Minutes of Settlement have been filed with respect to other issues and the applicant has been tound to have trade union status in Board File No. 3586-96-R). We heard the parties' evidence and submissions on the timeliness issue. The facts were not in dispute. There is also no dispute that, pursuant to section 7(4) of the Labour Relations Act, 1995 (the "Act"), the applicant is entitled to bring an application for certification on the commencement of the last two months of operation of the collective agreement. The problem in this case is how to calculate that open period given the facts and the particular provisions of the Hospital Labour Disputes Arbitration Act (the "HLDAA") that apply in the circumstances.
3Local 220 currently holds bargaining rights for the employees subject to this application. The members of the bargaining unit are employed by the City of St. Thomas at Valleyview Home for the Aged and collective bargaining is subject to the HLDAA. The most recent collective agreement between those parties expired on December 31, 1992. Following direct negotiations, a conciliator was appointed on April II, 1995 and a Board of Arbitration was constituted pursuant to the terms of the HLDAA (the "interest arbitration board"). A hearing was held and an award was issued to the parties (the "Barton award"). That award covers the period January 1, 1993 to December 31, 1994.
4The parties filed an agreed statement of fact as follows:
On or after January 13. 1997, counsel for the Employer received a copy of a decision of Arbitrator P. Barton.
The covering letter from Barton Arbitrations Inc. was dated January 13. 1997.
The signature page of the Barton decision stated:
"DATED AT London, Ontario this day of November, 1996."
- Counsel for the Employer was subsequently advised that Arbitrator P. Barton had orally directed the parties to insert the number "26" so that the signature page of the Barton decision now stated:
"DATED AT London, Ontario this 26th day of November, 1996."
5, Submissions were made to the interest arbitration board concerning changes to the lay-off and recall language in the existing collective agreement. In its award the interest arbitration board dealt with that issue as follows:
A considerable part of the briefs of both parties was addressed to changes in the lay off and recall language of the Agreement. Such things as redefining the meaning of seniority, notice to the Union, notice to employees, the right to bump up or the right to bump down, competition or threshold clauses, length of recall, recall for temporary jobs, were considered. Although the Union proposed that much of the layoff and recall language be that of Mitchnick in 1992, in fact the Union proposal did not mirror Mitchnick and made some changes to it. The Board feels that additional job security, such as was granted by Mitchnick. is something to which these employees are entitled. The Board is not satisfied that the variations from Mitchnick proposed by the Union here are warranted. On the other hand, we are not satisfied that specific Mitchnick language fits this bargaining unit. It is not for us to draft language. As a result we Award that the parties meet and draft appropriate language consistent with the principles of the Mitchnick Award on this issue and that this process be finished within 90 days following the release of the Award. We remain seized of this issue and others which may arise during the implementation process.
At the time this application was filed, Local 220 and the employer had not negotiated or agreed on any lay-off and recall language nor had the matter been remitted to the interest arbitration board for determination. No collective agreement has been signed. This application was filed on February 11, 1997.
We also heard evidence from Mr. Lloyd Fennell, Director of Personnel and Human Relations for the City of St. Thomas. He is responsible for the administration of collective agreements. He received the Barton award on or about January 23, 1997. It provided for the retroactive payment of wages within 45 days "from the release of the Award". The parties agreed to treat the date of release as January 13, 1997. This was done without any input from the interest arbitration board. Mr. Fennell acknowledged that he had no information as to when the interest arbitration board (or a majority thereof) made its decision.
The relevant provisions of the HLDAA provide:
6 (16) The board of arbitration shall determine its own procedure but shall give full opportunity to the parties to present their evidence and make their submissions.
9 (1) The board of arbitration shall examine into and decide on matters that are in dispute and any other matters that appear to the board necessary to be decided in order to conclude a collective agreement between the parties. but the board shall not decide any matters that come within the jurisdiction of the Ontario Labour Relations Board.
(2) The board of arbitration shall remain seized of and may deal with all matters in dispute between the parties until a collective agreement is in effect between the parties.
10 (1) Where, during the bargaining under this Act or during the proceedings before the board of arbitration, the parties agree on all the matters to be included in a collective agreement, they shall put them in writing and shall execute the document, and thereupon it constitutes a collective agreement under the Labour Relations Act.
(3) Where, during the bargaining under this Act or during the proceedings before the board of arbitration, the parties have agreed upon some matters to be included in the collective agreement and have notified the board in writing of the matters agreed upon, the decision of the board shall be confined to the matters not agreed upon by the parties and to such other matters that appear to the board necessary to be decided to conclude a collective agreement between the parties.
(4) Where the parties have not notified the board of arbitration in writing that, during the bargaining under this Act or during the proceedings before the board of arbitration, they have agreed upon some matters to be included in the collective agreement, the board shall decide all matters in dispute and such other matters that appear to the board necessary to be decided to conclude a collective agreement between the parties.
(5) Within five days of the date of the decision of the board of arbitration or such longer period as may be agreed upon in writing by the parties, the parties shall prepare and execute a document giving effect to the decision of the board and any agreement of the parties, and the document thereupon constitutes a collective agreement.
(6) If the parties fail to prepare and execute a document in the form of a collective agreement giving effect to the decision of the board and any agreement of the parties within the period mentioned in subsection (5), the parties or either of them shall notify the chair of the board in writing forthwith, and the board shall prepare a document in the form of a collective agreement giving effect to the decision of the board and any agreement of the parties and submit the document to the parties for execution.
(7) If the parties or either of them fail to execute the document prepared by the board within a period of five days from the day of its submission by the board to them, the document shall come into effect as though it had been executed by the parties and the document thereupon constitutes a collective agreement under the Labour Relations Act.
(8) Except in arbitrations under section 8, the date the board of arbitration gives its decision is the effective date of the document that constitutes a collective agreement between the parties.
(9) The date the board of arbitration gives its decision under section 8 upon matters of common dispute shall be deemed to be the effective date of the document that constitutes a collective agreement between the parties.
(11) Despite the provisions of subsection (10) and except where the parties agree to a longer term of operation, a document that constitutes a collective agreement shall cease to operate on the expiry of a period of two years.
(a) from the day upon which notice was given under section 14 of the Labour Relations Act; or
(b) from the day upon which the previous collective agreement ceased to operate where notice was given under section 54 of the Labour Relations Act.
(12) Where under subsection (11), the period of two years has expired on or will expire within a period of less than ninety days from the date the board of arbitration gives its decision, the document that constitutes a collective agreement shall continue to operate for a period of ninety days from the date the board of arbitration gives its decision for the purposes of subsection 5(4), subsection 54(1) and subsection 58(2) of the Labour Relations Act.
We start with subsection 10(12) of the HLDAA. There was no dispute that it was applicable here. The parties were also generally agreed as to how subsection 10(12) of the HLDAA is intended to operate, accepting the Board's reasoning in The Metropolitan General Hospital [1991] OLRB Rep. April 547. The purpose of the subsection is to create an open period. It does so by extending the expiry date of a collective agreement when that agreement would otherwise have already expired by the time the interest arbitration board gives its decision. It extends the expiry date for 90 days from the date the board of arbitration gives its decision. By operation of subsection 7(4) of the Act (for our purposes) an open period exists during the last two months of that extended period, preserving the opportunity for the filing of a certification application by another trade union.
The subsection specifically contemplates the all too common delays in the negotiation and interest arbitration process. The employees affected rarely have a current collective agreement in place. Rather, their day to day lives are regulated by the terms of an expired agreement that has become subject to freeze provisions. They then see certain retroactive adjustments, and the cycle begins again. In cases where the resulting collective agreement has already expired, so too, any open period would have expired, That result is anathema to the policy concerns underlying subsections 7(4)-(6) and subsection 62(2) (and to a mixed degree, subsection 67(1)) of the Act, which contemplate an ascertainable and regular opportunity for employees or other trade unions to challenge an incumbent trade union's bargaining rights. Subsection 10(12) thus enables an "artificial" open period to be created, preserving the opportunity for employees or competing trade unions to challenge existing bargaining rights either through either a termination application or a certification application,
The negotiation and interest arbitration process at issue here was to effect the renewal of a collective agreement that expired on December 3 1, 1992, That renewal was for a period of two years. There is no dispute that, pursuant to subsection 10(11) of the HLDAA, the collective agreement resulting from this process was to expire on December 31, 1994. By the time of the award, any collective agreement resulting from the process had expired.
The difficulty arises in applying these provisions to the particular circumstances of this case. The applicant became aware of the interest arbitration award dated November 26, 1996. It treated the 90 days as commencing to run from that date. It filed its application for certification on February II, 1997, believing that to be within the last two months of the operation of the collective agreement. On the applicant's theory, its application is timely.
Local 220, supported by the employer, takes the position that they are still in the throes of the interest arbitration process by the terms of the Barton award. They argue that the award dated November 26, 1996 is an interim award and is not final. Local 220 also argues that, in the words of subsection 10(12) there is no "document constituting a collective agreement". In either case therefore, the 90 day period has not yet started to run. It will not start, in their view, until the parties deal with the lay-off and recall issues either through negotiations or by returning to the interest arbitration board to have that matter determined, and if necessary, to prepare the document that becomes the executed collective agreement.
In addition, Local 220 argues that even if the award is final, the 90 day period runs from January 13, 1997, not November 26, 1996. Therefore the application filed is premature and untimely, as it does not fall within the last two months of the operation of the agreement.
The parties also take issue with the appropriate method of calculating both the 90 day period and the two month period under the respective statutory provisions.
We will deal first with the issue of whether there must be a "document constituting a collective agreement". In our view there need not be a collective agreement in existence in order for subsection 10(12) to apply. What is required is the information necessary to be able to determine the expiry date of any document that would constitute the collective agreement. Subsections 10(6)-(7) do provide a mechanism whereby one or both parties to the arbitration process can require the interest arbitration board to prepare the written collective agreement resulting from the process and, if necessary, deem its execution by operation of the statute. However those are not necessary steps in order to determine the expiry date.
Subsection 10(11) provides (for our purposes here) that the document that constitutes the collective agreement shall cease to operate on the expiry of two years from the expiry of the predecessor collective agreement. That was not in dispute here; the predecessor collective agreement expired December 31, 1992. The collective agreement arising from this interest arbitration process expired on December 31, 1994. Subsection 10(12) provides that where (as here) that two year period has expired by the time of the award, the document that constitutes a collective agreement shall continue to operate for a period of 90 days. In order to accomplish the purpose of subsection 10(12) there is no need to have an executed collective agreement.
There are good reasons for this. The driving policy consideration in subsection 10(12) is to provide clarity and certainty to all parties potentially affected. That includes employees and trade unions not party to the interest arbitration process who have no way of ascertaining the relevant time periods except through public documents and the application of applicable law. In order to create the collective agreement one or both of the parties to the bargaining relationship must act in response to the award of an interest arbitration board. Should both parties be content of their obligations without the need for that document, and yet one was required by subsection 10(12), no open period would arise. Even if the parties did act at some stage to create a document there is nothing to ensure that interested others would be able to pinpoint the relevant dates for making any necessary calculations as to the open period. Finally, on this theory, the parties to the agreement could act together to prevent any opportunity to challenge the existing bargaining rights.
In this case therefore, for purposes of subsection 10(12), the tw.o year period of the collective agreement has expired (on any calculation) and the document that constitutes the collective agreement is to continue to operate for a period of 90 days from the "date the board of arbitration gives its decision". What is meant by the "date the board of arbitration gives its decision"'? This gives rise to two issues; first, when does an arbitration board "give" its decision and second, when has an arbitration board given "its decision", or, to put it another way, what constitutes the "decision"'?
Given our finding as to what constitutes the "decision", the issue of when the interest arbitration board "gives" that decision does not arise in this case. However we do feel some comments are warranted. The applicant argued that the date of the award, November 26, 1996, was the ascertainable and therefore appropriate date. The employer and Local 220 relied on the date that the decision was forwarded to them, January 13, 1997. They rely on the term "gives" according to its common meaning as including an element of transmission or communication.
Either interpretation presents a certain difficulty in accomplishing the objective of the subsection. In order to be able to calculate the 90 day extension, third parties must be able to rely on a clear and ascertainable date. The date of the award without doubt provides a greater degree of certainty and clarity. It is more readily ascertainable by third parties. It is the public document. Third parties do not have ready access to, and ought not to be required to somehow seek out a date found in private correspondence.
On the other hand the subsection contemplates that there be an extension of 90 days and a corresponding full two month open period. Applying the date of the award in circumstances where the award is not forwarded in a timely way risks reducing or altogether foreclosing an open period. Both concerns affect the third party interest that is sought to be protected by the subsection, and in that sense interpreting the subsection incorporates an element of assessing the "lesser of two evils".
It is incumbent on the interest arbitration community to be aware of the rights that flow from an interest arbitration award. These are not just the immediate collective bargaining rights; they include additional statutory rights. In recognizing that third party interests are also affected by the timing and character of an award, an interest arbitration board can act to reduce if not eliminate conflict or confusion arising out of the attempted exercise of those statutory rights. For example, where a dissent to an award is anticipated, the majority of the interest arbitration board can consider whether to release the award in a timely way with a dissent to follow or be content to delay the date of the award until the dissent is released concurrently. It may be the rare occasion when the date of the award differs significantly from the date the award is forwarded to the parties. Of course, no issue arises when those dates are the same,
Where the dates differ by only a few days, the concern for clarity and ascertainability is likely to outweigh the concern for the provision of a full 90 day period, given that a full open period of two months would still flow, As noted in The Metropolitan General Hospital, supra, decision, the open period will be a direct function of the "date of the arbitrator's award" (at paragraph 24), Although not specifically addressed that conclusion is also implicit in the Board's decision in Chateau Gardens Queens [1992] OLRB Rep. Aug. 906, (see paragraph 40) a decision involving Local 220. In other words, there may be a strong presumption in favour of the date of the award.
The issue of clarity becomes more important in the context of the introduction of subsection 7(10) of the Act. That subsection imposes a mandatory bar on an applicant which withdraws its application after a representation vote is taken. In the current certification scheme requiring five day votes, a vote will almost always have been held prior to any consideration by the Board of the timeliness issue. So if an applicant recognizes during that process that it may be mistaken as to the appropriate date it is arguable based on that statutory language that an applicant is barred and cannot withdraw and re-apply in a timely way. (A consequence probably not intended by the statute but against which the Board has no authority to relieve).
A bar will not operate where the Board dismisses the application because it is untimely. (The mandatory bar under subsection 10(3) of the Act arises where the application has been dismissed because of insufficient support for the applicant shown through the vote results). However, depending on the variation in the dates, by the time the Board is able to render a decision the open period may well have passed, again foreclosing an opportunity to re-apply in a timely way. An applicant can “buffer” its opportunity to exercise its right to challenge an incumbent by filing multiple applications but ultimately at the expense of the parties and the Board in responding to them, So, there is good reason to seek to avoid these possible consequences arising out of confusion over the date that the interest arbitration board "gives" its decision.
Finally, in this case the fact that the parties to the interest arbitration award agreed that its “date of release" for purposes of the payment of retroactivity was January 13, 1997 is of no assistance. That date provided for the amount of time that the employer would have available to make the necessary calculations and produce cheques with itemized statements. As a practical matter, 45 days from November 26, 1996 had already expired when the employer was informed of its obligation, and a suitable period was required in order to complete the work. So. sensibly, the parties agreed to a period of 45 days from January 13, 1997. That cannot affect the statutory determination of the open period,
We turn then to the issue of what constitutes the interest arbitration board's "decision". Local 220 and the employer argue that the November 26, 1996 award is an interim award. They assert that it is incumbent on the interest arbitration board to resolve all matters remaining in dispute between the parties. They rely on the award they received which directed them to continue to negotiate, failing which, to return to the board in order that it could finalize its award. Any operation of subsection 10(12) is. on this theory, not precluded, but postponed. In support of this position, Local 220 argues that a review of section 10 of the HLDAA confirms that no collective agreement can come into effect until all matters in dispute have been determined.
Local 220 also poses this concern. If the interest award were treated as a final award, and issues of lay-off and recall arose in the workplace, what would the union grieve'? There would be no settled language for a rights arbitrator to interpret in order to determine the parties' interests. In that regard it relies on an arbitration decision of a board chaired by D. Fraser, Durham Memorial Hospital, unreported, dated March 25, 1991.
Local 220 also argues that it is contrary to the policy discussed in The Metropolitan General Hospital, supra, to create an open period and allow a trade union to bring a displacement application at the same time that the incumbent union is trying to negotiate the matters remitted to the parties. Such a result does not promote the completion of the collective agreement nor does it allow the employees an opportunity to review the terms of the new agreement and enable the incumbent union an opportunity to satisfy any concerns about its efforts.
The employer notes subsection 6(16) of the HLDAA that gives the interest arbitration board the right to determine its own procedure. It submits that it appears that the interest arbitration board in this case determined that a two-step procedure was appropriate. Counsel argued that if the award was a final award then, pursuant to subsections l0(5)-(7) one or other of the parties could request that the interest arbitration board incorporate its direction that the parties meet and negotiate language in accordance with certain principles as part of the collective agreement document. The effect of that would be to create a 'mini-arbitration" pursuant to a rights arbitration process (under the Act) rather than an interest process (under the HLDAA), a result not in keeping with the intention of either statute.
In response, the C.H.C.W. argues that the award must be treated as a final award. Treating it as an interim award could act, it argues, to prevent an open period from arising in the following way. The award gives the parties 90 days in which to negotiate language. If the parties are successful and enter into an agreement concerning the lay-off and recall language on the ninetieth day, two things would occur. First, the interest arbitration award would become final on a kind of retroactive basis, as there would no longer be any outstanding issue to remit to the board. As a final award, the 90 day period under subsection 10(12) would run from the date of the award. The open period would fall within the last two months of that 90 day period giving rise to the second event - the open period would expire on the same day that the parties settled their agreement, thereby foreclosing any opportunity to bring an application challenging the incumbent's bargaining rights.
The applicant also submits that it is the prior collective agreement that is extended in order to allow for a displacement application. Given that we reject this argument, we need not deal with Local 220's argument that it is inappropriate for us to consider the submission, it being received after the hearing. Briefly, on a reading of section 10 as a whole that position cannot prevail. All references to the "document constituting the collective agreement" are in reference to the collective agreement that results from the negotiation and interest arbitration process. These provisions apply equally in the case of a first collective agreement as well, where there is no previous collective agreement that could be extended. A prior collective agreement would have long since expired and its terms continued only as a result of the application of the freeze provisions.
In reply the employer suggested that the unique circumstances in this case, including the hypothetical possibility that by action of the parties an open period might be foreclosed, was not something contemplated by the legislation and represents a shortfall in the statute. Further, that interest arbitration boards may need to be advised of the possible consequences of making the kind of direction as is contained in this award, but that does not affect the interim nature of the award.
Rather than characterizing the issue as one of the "interim" or "final" nature of the award, the obligation of the interest arbitration board is described in section 9 of the HLDAA; to decide on matters that are in dispute. Subsections 10(3) and (4) recognize that the parties may or may not have agreed to certain issues and that any agreed to matters are precluded from consideration by the interest arbitration board. The issue is, does the November 26, 1996 award decide matters in dispute between the parties?
In Durham Memorial Hospital, supra, the union brought six grievances respecting the retroactive application of vacation entitlement and shift premium arising out of an award of an interest arbitration board constituted pursuant to the HLDAA. The award provided for improvements over the predecessor collective agreement. The parties disagreed however as to the effective date of the changes. The union took the position that they were retroactive to the commencement of the collective agreement. The employer was of the view that they took effect as of the date of the interest award, some two years later.
No collective agreement had been signed following the release of the interest award, nor had either of the parties utilized the procedure under subsections l0(6)-(7) of the HLDAA to have the document prepared and deemed executed. The employer had implemented other aspects of the award and had sought clarification on the issue of retroactivity from the interest arbitration board. In the absence of the union's consent, the interest board declined to provide clarification.
At the outset of the rights arbitration the employer took the position that the arbitration board had no jurisdiction to consider the grievances as no collective agreement was in effect between the parties. The arbitration board concluded that it had no jurisdiction to determine the grievances, on the basis that no "new" collective agreement existed. The arbitration board found that the prior collective agreement and the interest award did not constitute a collective agreement pursuant to which a grievance could be heard. The board acknowledged the right of the union to grieve under the terms of the "old" collective agreement.
It is apparent that the found inability of the union to grieve under the new terms provided for by the interest award in Durham Memorial Hospital, supra, did not arise because of the nature of the award. It arose because there was not a collective agreement (incorporating those new provisions) in effect between the parties, from which the rights arbitrator would take jurisdiction. The terms of the parties' relationship were still governed by the freeze.
Contrary to the concern posed by Local 220 there is no lost opportunity to grieve. Even according to Durham Memorial Hospital, supra, Local 220 would continue to be able to grieve matters of lay-off and recall, but pursuant to the terms of the expired collective agreement, (and any agreed to changes) continued by virtue of the freeze under section 13 of the HLDAA, Until such time as the parties have executed a collective agreement incorporating the interest award, the right to grieve arises not from the "new" collective agreement, but from the terms of the freeze, including the grievance and arbitration provisions contained therein, Subsection 86(3) of the Act applies and any allegation of a violation of the freeze may be referred to arbitration, or pursued at the Board. While there may be an issue as to what is caught by the freeze at various stages up to the execution of the "new" collective agreement, a rights arbitrator has jurisdiction to determine that issue and whether the freeze has been violated. As a practical matter, the issue may not often be characterized as such. The parties may simply agree that, notwithstanding no executed collective agreement, their obligations under the freeze include terms set through the interest award where the parties have implemented them, for example, the payment of wages. The "content" of what is frozen can change with the parties' consent. Durham Memorial Hospital simply concludes that the union could only pursue rights maintained by the freeze, In this case the lay-off and recall language has been remitted to the parties for negotiation, and to that extent it extends the operation of the freeze. Whatever else it may speak to, the decision in Durham Memorial Hospital does not assist us in determining whether the Barton award dated November 26, 1996 determines the matters in dispute between the parties.
Local 220 argued that it made poor labour relations sense to have an open period while negotiations were continuing. As a general proposition we agree. That is one purpose of generally having the open period fall at the end of a collective agreement. The employees have been able to experience the advantages or disadvantages of the terms of that agreement and the union's representation of their interests both in negotiations and in the administration of the agreement. However a union may well have to defend its bargaining rights at the same time that it is engaged in negotiations for the renewal of the agreement, for example in circumstances where negotiations occur in advance of, or at the time of the agreement's expiry. That possibility is also contemplated in section 67 of the Act either prior to conciliation or mediation or, depending on the circumstances, at various later stages of negotiations. The provisions of the HLDAA reduce that likelihood for unions subject to its terms, but there is no necessary policy reason to conclude that the possibility is eliminated. We note for example that had the parties entered into a five year collective agreement in 1992, there would by now have been three open periods provided under the Act.
The decisions in Salvation Army Grace Hospital [1978] OLRB Rep. Dec. 1142 and London and District Service Workers' Union, Local 220, [1985] OLRB. Rep. Oct. 1490 deal with different circumstances and do not provide assistance on this issue of the nature of the November 26, 1996 award.
In Chateau Gardens Queens, supra, the Board found an application for certification to be timely, notwithstanding the fact that the interest award dealt only with common issues and that "local" issues remained outstanding. The Board reviewed many of the same provisions of the HLDAA and commented:
While the problem posed by this case has the flavour of a Times crossword puzzle, in our opinion, the key to its solution lies in section 10(9) of the HLDAA, when read together with the purpose of the "open period", and the various HLDAA provisions dealing with the "term of operation" of the collective agreement.
As we have already mentioned, the "term of operation" prescribes not only the duration of a particular benefit stream, and the parties' bargaining cycle. but also the "open period" during which employees can change bargaining agents. In order to decide what the term of operation is. .section l0(9)-(12) must be read together, and in that regard we might note that section 10(12) refers specifically to section 5(4) [now 7(4)] of the Labour Relations Act - the section which specifies when a raiding union can apply to displace its rival.
Since we want this decision to be understood by the employees affected by it, we will work through the relevant provisions of HLDAA, one by one.
First of all, we think it is significant that under section 10(9), it is the date upon which the arbitrator settles the common issues, that is deemed to be the "effective date" of any document that constitutes a collective agreement. That is the date when any eventual collective agreement comes into existence. It is from that date that subsequent HLDAA provisions mark time.
Subsection 10 provides that the collective agreement remains in force for a period of one year from the effective date [the "common issue" decision date - here December 16. 1991]. However. subsection 11 can override subsection 10, providing that the agreement will cease to operate two years after the expiry of the old collective agreement. Stopping there, the formula is: the agreement operates for one year after the date of the arbitration award [December 16, 1991]. but no longer than two years from the expiry of the old agreement.
Subsection (12) adds an additional variable: if the award is issued beyond two years from the expiry of the old agreement, the collective agreement is extended for a period of ninety days for the express purpose of creating an ascertainable "open period". In effect, the statute breathes artificial life into an expired agreement for the purpose of giving employees an opportunity to challenge or change their bargaining agent.
This formula is a little bit complicated but, in each case, it turns upon an ascertainable benchmark which can be readily ascertained by disaffected employees and rival unions. One need only know two things: the expiry date of the old agreement which will be apparent from its terms, and the date of the common issue arbitration award which will likewise be apparent on its face.
This scheme does not depend upon whether or when the local issues are resolved at arbitration. Those matters can either be decided by the arbitrator immediately, or s/he can refer them to the parties for further bargaining. But any delays associated with the resolution of local issues will not interfere with the "effective date" from which the collective agreement operates, and thus the term of operation of the agreement. And, if the term of operation is fixed with reference to ascertainable facts and statutory parameters, one will be able to calculate the "open period". Finally, in this scheme, employees will have an opportunity to review the basic benefits secured by their bargaining agent before being asked to vote for a rival (assuming that employees might blame their union for the results of arbitration - an unwarranted conclusion, but not an unlikely scenario).
In the alternative, if anything turns on the fact that the parties did not bother to formally transform the Bendel award into a collective agreement, subsection (12) comes into play and the result is the same. The Charney award of December 16, 1991 came down more than two years after the last formal collective agreement between these parties had expired (i.e. in 1988). If that is so, subsection (12) would create an artificial "open period" for ninety days from December 16, 1991, the date the Charney common issues award is released.
In our opinion, the arbitration decision contemplated by section 10(12) is the one determining the common issues, and thus the "effective date" of the agreement. That is the award which is significant for calculating the time periods prescribed by section 10(9)-(11) and it makes sense that section 10(12) refers to the same award: the one issued by Mr. Charney on December 16, 1991.
In reaching its conclusion the Board relied on the words "gives its decision ....upon matters of common dispute" in subsection 10(9) to conclude that it was unnecessary to await the outcome of the local issues in order for subsection 10(12) to take effect. Subsection 10(9) is applicable to interest arbitrations pursuant to section 8 of the HLDAA, which provides, in essence, for forms of' consensual industry bargaining, that is, one arbitration to determine matters of common dispute between more than one set of bargaining parties. That is not the case here. This interest arbitration was specific to Local 220 and this employer. The comparable provision to subsection 10(9) but applicable in this case is subsection 10(8) of the HLDAA. The language used there is simply "gives its decision"; the same language that is in issue in subsection 10(12).
The language "gives its decision" is however to be contrasted to subsection 10(5) which stipulates that within five days "of the date of the decision" of the interest arbitration board, the parties shall prepare and execute the collective agreement, That language more clearly reflects the date of the award. Thus in assessing what the statute means by the term "decision" it appears that it contemplates a decision so sufficiently complete that the parties can, as a general proposition, prepare the collective agreement giving effect to that decision within a period of five days. The Barton award specifically allows the parties a period of 90 days to negotiate lay-off and recall language. If the November 26, 1996 award determined the matters in dispute, that provision of 90 days runs directly counter to subsection 10(5) and by extension, subsections 10(6)-(7).
By referring the matter back to the parties to negotiate lay-off and recall language, the award, although further delaying the process, seeks to effect a useful collective bargaining result - to have the parties reach an agreement. In effect, the award indicates that the interest arbitration board is adjourning for a period of 90 days; that it is refraining from deciding on matters in dispute until that negotiating opportunity is exhausted and only at that point will the interest arbitration board decide matters in dispute and render a "decision",
We are satisfied that the concern expressed by the applicant (at paragraph 32) is addressed by the fact that if the parties are able to settle the lay-off and recall language the interest arbitration board must be so advised. Until it is so advised there remains an issue in dispute and according to both section 9 and subsection 10(4) of the HLDAA the interest arbitration board is required to decide it. Thus, in the particular circumstances there can be no "retroactive" concluding of the decision. It is only at the point that the interest arbitration board confirms that the lay-off and recall language is settled and therefore is outside the ambit of the interest arbitration board's authority to decide, that there is a decision on matters in dispute. That interpretation is consistent with section 9 of the HLDAA and with the intent set out in both subsections 10(4) and (5) of the HLDAA.
We find therefore that the interest arbitration board has not yet given its decision and consequently subsection 10(12) of the HLDAA has not yet been triggered.
We recognize that in the particular circumstances of this case there may continue to be some confusion as to the date the interest arbitration board then "gives" its decision depending on how the parties and the interest arbitration board deal with the lay-off and recall issue. Should the parties not settle the language and the matter is remitted to the interest arbitration board then the issue of the date the board "gives" its decision should be clear. Should the parties settle the language the interest arbitration board should confirm that matters in dispute have been decided. In these circumstances we direct both the employer and Local 220 to advise the applicant of any settlement of the lay-off and recall language and the date of any confirmation of same by the interest arbitration board. In either event of the language being settled or remitted to the interest arbitration board, we direct the employer and Local 220 to forthwith provide a copy of this decision to the interest arbitration board.
The parties also differed in their views as to how to calculate the different time periods should we find that November 26, 1996 was the "date the board of arbitration gives its decision". Although not now necessary to address in the circumstances of this case, again, a few comments may provide some guidance. The issue in respect of the 90 day period under subsection 10(12) of the HLDAA was whether it was "calendar" days or "working" days. Local 220 relied on the recent changes to the certification provisions in the Act, noting that votes are held within five working days, not calendar days. However, subsection 8(5) of the Act makes specific reference to the exclusion of Saturdays, Sundays, and holidays for purposes of that calculation and is not a useful guide. In the absence of any qualification limiting the period to working days, we prefer to give the words their normal meaning, that is, the period is one of 90 (calendar) days.
We are of the view that under section 7(4) of the Act (and similarly under the termination provisions) the reference to the "last two months" is not usefully determined by counting back on the basis of a varying number of days depending on the months in issue. Rather, it is a calculation going back "two months", that is, where agreements commonly expire at the end of a month (December 31) the last two months commence on the first day of the second last month (November 1). If the agreement expires other than at the end of the month, for example on November 14, the last two months in this example would commence on September 15. The only potential anomaly created by this method arises where an agreement expires on May 29 or 30 because of a short February.
In summary, we find that the award dated November 26, 1996 does not decide the matters in dispute between the employer and Local 220 and that therefore, the 90 day extension under subsection 10(12) of the HLDAA does not run from that date. Matters in dispute continued to be outstanding as of the date of the filing of this application on February 11, 1997 and it is therefore premature and untimely. The application is therefore dismissed. This dismissal is without prejudice to the applicant's right to re-apply in a timely fashion and the parties are directed to the Board's comments and directions in paragraph 49 of this decision.