[1998] OLRB REP. JANUARY/FEBRUARY 80
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.
DECISION OF VICE-CHAIR GAIL MISRA AND BOARD MEMBER J. A. RONSON; February 9, 1998
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 a 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 a timely application for termination of bargaining rights filed by Mr. Menzies on April 4, 1997, pursuant to section 63 of the Act.
On July 29, 1997, the Board issued a decision with respect to a number of matters which had arisen in this case. The question which remained outstanding before the Board was the status of the first contract application and of the termination application. For reasons explained in that decision, prior to ruling on this remaining issue the Board gave the parties an opportunity to make submissions with respect to how the Board should decide this question. We have now reviewed all of the parties' submissions, and, based upon both the oral submissions made at the hearing, and the subsequent written ones, are in a position to render a decision.
Given the nature of the sequence of events in this case, the union submits that the first contract application should proceed, even if there is now technically a collective agreement in place. It argues that the collective agreement is tainted as it is the "fruit of bargaining in bad faith and represents both an abuse of process and a fraud on the Board". There are no pleadings in support of this position. The union seeks to have the Board hold a hearing to determine whether Native Child and Family Services of Toronto (the "employer"), through its conduct in purporting to enter into the collective agreement, has violated the Act.
The objecting employees submit that since a proposed collective agreement was reached, and subsequently ratified by the members of the bargaining unit, the employer and the union have now effected a first collective agreement. Therefore, the Board should dismiss the first contract application on the grounds that it is now moot, and that it would serve no labour relations purpose to inquire into it any further as there could be no remedial relief ordered. The objecting employees submit that the termination application, which the Board has already found to be timely, may then proceed. It is suggested that the ballots cast in the vote held on April 15, 1997 should be counted.
The employer, adopting the argument made by the objecting employees, submits that the first contract proceeding should be considered terminated, and that there is now no impediment to the counting of the ballots cast in the termination application.
DECISION
The issue which arose in this case was one of first impression for the Board in that an employer had not previously agreed to sign a proposed collective agreement tendered by a union, as part of the first contract direction application, when there was also an outstanding termination application. However, in the intervening time since this case began, a similar case was heard and decided by another panel of the Board. The Board in that case reached a different conclusion. In the course of this decision reference will be made to Ingersoll Plastics Inc., (Board File No. I 838-96-FC, December 10, 1997, as yet unreported), [now reported at [1997] OLRB Rep. Nov./Dec. 996].
In reaching its decision, the Board has considered all of the submissions of the parties, and has had regard to the policy implications of an employer accepting a union's first agreement proposal for a collective agreement after a termination application has been filed.
As stated in the Board's decision of July 29, 1997, the chronology of events in this case is as follows. The union was certified to represent the employees of the employer on October 23, 1995. The parties bargained for a first collective agreement until the union filed its application for a first contract direction on February 27, 1997. In accordance with Rule 67(j) of the Board's Rules of Procedure, with its application the union submitted a draft collective agreement which it was prepared to sign. On March 13 and again on April 4, 1997, termination applications were filed. The first termination application was withdrawn on April 11, 1997. On April 11, 1997, after both termination applications had been filed, the union submitted a revised proposed collective agreement, again in accordance with Rule 67(j), which it was prepared to sign. On April 24th, at the hearing of this matter, the employer agreed to accept that proposal and signed it back to the union. The Board found that there was a proposed collective agreement between the parties, and subsequently a ratification vote was held of the membership. On April 28, 1997, the bargaining unit members voted to ratify the collective agreement.
We have already found that on April 24, 1997, the union's proposed collective agreement, tendered as part of its first contract application, was on the table and capable of being accepted by the employer, and that there was no impediment to the employer's acceptance of the union's proposed collective agreement. The Board does not intend to once again revisit this issue, which was argued before us on April 24th and again in the reconsideration application. There must be some finality to matters which are heard and decided before the Board, and parties should be able to expect that once a matter has been heard, decided, and reconsidered, that the matter is considered at an end.
In the circumstances of this case, and for the reasons which follow, the majority is of the view that the parties have reached a collective agreement, that the first contract direction application is consequently now moot, and that no purpose can be served by holding further hearings into this application.
We start from the proposition, recognized in the Board's jurisprudence, that the process of collective bargaining is one which is to be encouraged, as a negotiated solution is generally going to be the most acceptable to the parties. In Nepean Roof Truss Ltd., [1986] OLRB Rep. July 1005, the Board outlined the purpose of the first contract provisions of the Act as follows:
It is clear from these provisions that the legislature has acknowledged the significance to the collective bargaining relationship of the first contract, and has given statutory recognition to the potential difficulties that may be encountered in achieving it. This remedy does not supplant the primacy of the free bargaining process; rather, it recognizes that negotiation of the first agreement may sometimes be thwarted by unjustified intransigence. Although this is remedial legislation and should be given a liberal construction and interpretation, the scheme of section [43] does not envision the automatically imposed settlement of a first collective agreement in all cases where the parties are unable to negotiate one. What it provides is access to this remedy where certain conditions precedent have been met These conditions are enumerated in subsections (a) - (d) of section [43(2)].
In this case, these parties had been negotiating over a period of about 16 months before the union filed its first contract direction application. It would be in that context that the parties, in accordance with the Board's rules, submitted the proposed collective agreements which each was prepared to sign. As the Board noted in its earlier decision, the Board requires that the parties turn their attention to what they want in a collective agreement in the expectation that each party will carefully consider its position. Having an opposing party's proposed collective agreement before one allows a party an opportunity to evaluate it with a view to whether one can live with it, and thereby reach a collective agreement without resort to litigation. That is notionally what occurred here when the employer accepted the union's proposed collective agreement prior to the commencement of the substantive portion of the hearing.
What the Board has before it is a collective agreement submitted by the union which it was by definition prepared to sign, which the employer then also agreed to sign, and did sign. The membership of the union voted on the proposed agreement, and ratified it. In these circumstances we conclude that the parties have reached a collective agreement.
It is not for the Board to infer motive in the absence of any pleadings or evidence suggesting such. The Board is not blind to the reality that parties to litigation act in their own best interest, and in doing so, may employ strategies to achieve their own ends. That strategizing is in fact necessary in the adversarial system. It is our view that in this case the employer decided to take the chance of accepting the union's proposal, and subsequently the employees voted to accept the proposed collective agreement. It may be that by adopting the strategy that it did the employer has caused the termination application to become the live issue. However, that in and of itself cannot be a legitimate reason for the Board to ignore the acceptance and ratification of the collective agreement, and to go forward and hear the first contract direction application. The Board ought not to be basing its decision on the strategies employed by the parties. We are of the view that there would have to be a more compelling reason, perhaps outlined in pleadings, for the Board to embark on such a course.
We understand that as a consequence of our decision there may be a concern that by agreeing to an adjournment, whether to continue to bargain, or to accommodate an employer, a trade union may find itself prejudiced by the filing of a timely termination application. However, any applicant can choose when it wishes to file an application under section 43, so that it is for that party to decide when it is or is not in its interest to consent to adjournments. The Board has consistently scheduled these matters for hearing within 30 days of the application date, and has attempted to accommodate in its scheduling the need to complete this type of case expeditiously. Notwithstanding the legislated and administrative priority given to section 43 cases, it was the parties which asked to adjourn dates until one or the other believed it should proceed.
There may also be a concern about the implications of compliance with Rule 67. Since this issue had not arisen previously, there had been no reason for the Board to opine on the status of a party's proposed collective agreement filed with a section 43 application or response. In many cases the presence of the proposed collective agreements of the parties did lead to negotiated settlements being reached. However, the Board's rule is clear: An application for first contract arbitration under section 43 must also include a copy of a proposed collective agreement which the applicant is prepared to sign. We do not think there is anything misleading or unclear about the rule. It is always open to a party to seek to amend or supplement its pleadings in light of later developments in a case. Hence, if a party believes that there has been some material change in circumstances, such as the filing of a termination application or some conduct on the part of the other party, it may make submissions to the Board about how it would like to address the new development, and it may wish to amend its proposed collective agreement.
In the case before us, the union did in fact amend its proposed collective agreement two weeks before the commencement of the hearing. This was long after the employer's response and its proposed collective agreement had been filed, and was after both termination applications had been filed. It can hardly be suggested that the proposal had been extinguished by the passage of time, and there was no other intervening event before the beginning of the hearing.
It is noteworthy that in its response to the termination application, the union has not alleged that the employer initiated the termination application, or engaged in threats, coercion, or intimidation in connection with that application, contrary to section 63(16) of the Act.
As was noted earlier, another panel of the Board has very recently issued a decision in a case which raised a similar issue to the one before us. In Ingersoll Plastics Inc., cited above, the
majority of the Board decided that despite the employer's acceptance of the union's proposed collective agreement, it would hear the entire section 43 application. The facts of that case are distinguishable from the facts before us. There, the union's proposed collective agreement had been outstanding for almost five months, and the termination application had been filed after the union had filed its amended proposed collective agreement. Furthermore, in that case the employer did not sign the union's proposed collective agreement, but rather indicated that it would only do so if it had an assurance that the Board would dismiss the first contract direction application.
The Board had requested that the parties make submissions on the effective date of the collective agreement. However, none of the parties addressed this matter in their submissions so it would seem not to be an issue between the parties.
We turn now to a consideration of the termination application. There has been considerable upheaval in this bargaining unit since it was certified more than two years ago, on October 23, 1995. At the time of the filing of the first contract application in February 1997, the bargaining unit members had been without a collective agreement for 16 months. First one and then a second termination application was filed in March and April, 1997. A vote was held and not counted in April, 1997. A further vote was held for the ratification of the collective agreement in late April, 1997.
Pursuant to section 111(5) of the Act, the Board has the power to order another vote. The section states:
(5) Where the Board determines that a representation vote is to be taken amongst the employees in a bargaining unit or voting constituency, the Board may hold the additional representation votes as it considers necessary to determine the true wishes of the employees.
It is therefore open to the Board to order another representation vote in the termination application should it deem it necessary to do so. In the circumstances of this case we are of the view that another vote should be held to determine whether the employees of the bargaining unit wish to continue to be represented by the union. At the time that the original termination vote was held these employees had been certified, but without a collective agreement, for one and a half years. Since that time their employer has reached a collective agreement with their bargaining agent, and they have ratified that collective agreement. Given the passage of time in this case, these employees have now had an opportunity to live with the conditions of the new collective agreement, and we believe will be in a better position to gauge their commitment, or lack thereof, to having a continuing relationship with this trade union. Therefore, in the exercise of the Board's discretion, we order that a new representation vote be conducted to determine the true wishes of the employees of this bargaining unit.
The Board directs that a representation vote be taken of the employees of Native Child and Family Services of Toronto employed in the following bargaining unit:
all employees of Native Child and Family Services of Toronto, save and except Program Coordinatars and Supervisors and persons above the rank of Program Coordinator and Supervisor.
All those employed in that bargaining unit on April 4, 1997, the application filing date, and who are still employed, will be eligible to vote. The vote will be held on February 17, 1998. Other vote arrangements will be as determined by the Registrar and set out on the attached Notice of Vote.
Voters will be asked to indicate whether or not they wish to be represented by the responding party in their employment relations with Native Child and Family Services of Toronto.
The employer is directed to post copies of this decision and of the "Notice of Vote" adjacent to the "Notice to Employees of Application for Termination of Bargaining Rights". These copies must remain posted for 30 days.
Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for termination of bargaining rights, must file a detailed statement of representations with the Board and deliver it to the other parties, so that it is received by the Board within seven days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER D. A. PATTERSON; February 9, 1998
I dissent from the majority decision. I would not have exercised the Board's discretion in ordering the vote of the application by employees to terminate bargaining rights.
I do not believe there is any disagreement from the facts as stated by the majority in this matter. I strongly disagree with the approach adopted by my colleagues in their interpretation of the facts.
The majority has erred in its approach to this labour relations problem in this case. As a matter of opinion, the majority has put the union in a very weak position to face its members after a first contract. As proposed, the Board has said the union now has to stand alone while the employees cast their ballots over what kind of a job the union did since it was certified. This I believe is a very dangerous precedent, to have the union have to face such a vote after protracted negotiations and appearing before the Board on a first contract application. Any union would have difficulty maintaining a vote of confidence under similar circumstances.
I also believe the majority failed to take into account the agency rights and obligations the responding party has in this case. The union did not get a chance to demonstrate its ability to achieve a collective agreement or to do its job amongst a newly-organized bargaining unit. The union was cognizant of their obligation under the Act and the fact that they were counting the calendar down from the time they were certified. Their efforts should not be thwarted by the Board whose primary role is to further harmonious industrial relations between employees and employers. The Board should not react blindly to the realities of labour relations under these kinds of circumstances; to order the vote at this stage runs entirely in the wrong direction. The union should have been allowed to develop its relationship with both the employees, their members and the employer before entertaining a termination application. The employees will have their chance to determine what kind of a job the union did at the expiration of the accepted memorandum. At this stage, the parties are at an embryonic stage of the relationship, the relationship between the parties can hardly be considered one of any substance.
I would concur with the dissenting opinion of my colleague, J. A. Rundle, in Board File 1838-96-FC, in which she wrote, once a contract is accepted by the parties involved and notified, the contract is binding upon both parties. The termination application should not be allowed to scuttle the agreement after the fact.
I believe I would not be dissenting in this matter if the proposed memorandum of settlement was turned down by the employees. I believe the termination application would be timely and the Board should order a vote amongst employees because I would view the rejection as a vote of non-confidence in the union and the employer in the attempt to achieve a first collective agreement.
I do not buy into the principle that employees can certify a union, vote for the proposed collective agreement, then exert their rights to terminate the union conveniently after the collective agreement has been overwhelmingly accepted.