[1998] OLRB REP. MAY/JUNE 484

0741-98-PS Toronto Civic Employees' Union, Local 416 Canadian Union of Public Employees, Applicant v. Corporation of the City of Toronto (in its own capacity and c.o.b. as the Toronto Public Parking Authority), Responding Party v. Canadian Union of Public Employees, Local 79, Intervenor

BEFORE: Kevin Whitaker, Vice-Chair.

APPEARANCES: Judith McCormack, Brian Cochrane and Bob Toop for the applicant; George Monteith and Mark Bromley for the City of Toronto; John Saunders, William LeMay, Barry Martin, Ian Maher and Gerard Daigle for the Toronto Parking Authority; Pierre Sadik, Fred Taylor and Muriel Collins for the intervenor.

DECISION OF THE BOARD; June 1, 1998

I

1This is an application for interim relief pursuant to section 37(7) of the Public Sector Labour Relations Transition Act, 1997 (the "PSLRTA"). The application was filed on May 25, 1998. A consultation was convened to hear the parties' submissions on May 28, 1998. The consultation was convened pursuant to the Board's interim Rule 108(w) with respect to applications under the PSLRTA.

2The applicant is the successor trade union to fifteen locals of the Canadian Union of Public Employees. Those fifteen locals represented approximately 9,000 employees of seven municipalities prior to the incorporation of the new City of Toronto (the "City") on January 1, 1998. The responding parties have extended voluntary recognition to the applicant as the successor to those fifteen locals.

3The subject matter of this application concerns employees currently employed by the City who are involved in some way with the provision of parking services. The respondent Toronto Parking Authority ("TPA") has begun to recruit to employment, persons currently employed by the City. The applicant does not recognize any practical distinction between the two responding parties and argues that they should be treated as one and the same for the purposes of this application. The applicant's challenge to the recruitment of employees TPA is that it pre-empts the process contemplated under the PSLRTA for the determination of issues which are addressed by sections 20 to 23 of that act.

4At the consultation, the parties made submissions with respect to two issues:

(i) has the application for interim relief been filed in accordance with the Board's Rules of Procedure, and if not, should the Board exercise its discretion to relieve against strict compliance with the Rules; and

(ii) in the circumstances of this case, does the Board have jurisdiction?

5The parties made no submissions with respect to the balance of harm, convenience or prejudice that might flow from granting or declining to grant the relief sought. It was understood that this issue would be dealt with subsequently if I determined that the Board has jurisdiction to grant the application.

6Having regard to the material filed and the information provided by the parties at the consultation, I find the following:

(i) the Board has jurisdiction in this case;

(ii) the responding parties have not acted in any way which would appear to be inconsistent with the scheme of the PSLRTA;

(iii) the application for interim relief has not been filed in accordance with the Board's Rules;

(iv) relief against the strict application of the Rules should be granted in these circumstances and the application is not dismissed despite my finding in (iii) above.

7The consultation in this matter will be reconvened on Friday, June 5, 1998 at 9:30 A.M. in the "Boardroom" at 400 University Avenue.

8The following brief reasons are provided for the purposes of assisting the parties in resolving the balance of this application by agreement or failing that, to clarify the issues left to be adjudicated at the reconvened consultation.

II

9On January 1, 1998, the constituent municipalities of the former Municipality of Metropolitan Toronto, were reconstituted as one new municipal entity (the City). This happened by operation of section 2(1) of Bill 103 (the City of Toronto Act, 1997). As a result, seven municipal entities were merged into one.

10On January 1, 1998, the Parking Authority of Toronto ("PAT") and the Parking Authority of North York ("PANY") were dissolved and a new entity, the Toronto Parking Authority ("TPA") was established. This happened by operation of sections 88 and 89 of Bill 148 (the City of Toronto Act, (2) 1997).

11Prior to January 1, 1998, parking services for the member municipalities of Metropolitan Toronto other than the cities of Toronto and North York were delivered by the municipalities directly and not through a parking authority.

12In North York, PANY appears to have delivered all parking services, but had no employees formally. The applicant takes the position that although persons who delivered parking services in North York were nominally employees of the City of North York, PANY exercised "employer-like" control over the terms and conditions of employment and for that reason should be considered as their employer.

13In the old City of Toronto, parking services were delivered in part by PAT and in part by the city directly.

14The applicant or its predecessor held bargaining rights for persons employed by PAT. There was a distinct bargaining unit for employees of PAT with a corresponding collective agreement between the applicant and PAT.

15After January 1, 1998, there remains one Municipal entity (the City), and one "board" (as that term is used in the PSLRTA) responsible for the delivery of parking services in the City, (TPA).

16After January 1, 1998, both the City and TPA delivered parking services. For example, the City delivered "on-street" and "boulevard" parking services, while TPA was responsible for "off-street" parking services.

17Members of the applicant employed by the City in the provision of parking services are covered by the collective agreements between the City and the applicant. Members of the applicant employed by TPA are in a bargaining unit of TPA employees only and covered by a collective agreement between the applicant and TPA.

18On February 6, 1998, the City passed By-law 28-1998 pursuant to section 90 of Bill 148. The effect of the By-law was to permit the transfer to TPA of those parking functions which were at the time, being administered directly by the City (for example, on-street parking).

19On May 11, 1998, the Directors of TPA agreed to assume the work formerly done by the City which was the subject of the transfer in By-law 28-1998. On May 13, 1998, the applicant was advised of this acceptance by TPA of work, pursuant to By-law 28-1998.

20By letters dated May 19, 1998, TPA wrote to members of the applicant employed in parking functions by the City, inviting them to consider employment with TPA. TPA intends to fill approximately 40 positions by recruiting members of the applicant employed by the City. Persons hired in this way will according to TPA, be covered by its collective agreement with the applicant and not by the collective agreements which currently apply to these persons. Despite this fact, TPA is prepared to respect the seniority of persons currently employed by the City. This recruitment will take place in the very near future.

21It is implicit that once TPA has accomplished their recruitment, positions currently held by the applicant's members employed by the City in parking functions will become redundant. Members of the applicant left in those positions who do not seek employment with TPA will be in a position to exercise whatever job security rights they are entitled to under their respective collective agreements.

22Throughout the period of time during which these events have occurred, the City has been involved in negotiations with the applicant and other bargaining agents (including the intervenor) in an effort to resolve the issues dealt with under sections 20 to 23 of the PSLRTA.

23The applicant and the intervenor take the position that the actions of the respondents have pre-empted and therefore undermined the negotiation process contemplated by the PSLRTA for purposes of resolving issues dealt with by sections 20 to 23 of the legislation.

24Although this is not disclosed in the application as filed, the applicant asserted at the consultation that if it is necessary to bring the application which is only intended at this point, the applicant will be seeking an "all employee" bargaining unit that includes employees of both the City and TPA.

III

Jurisdiction

25Section 5(1) of the PSLRTA states:

5. (1) This Act applies upon the establishment of a local board of the new City of Toronto to which the employees of one or more local boards of the old municipalities are transferred during the transitional period.

(2) For the purposes of this Act, the local boards of the old municipalities are the predecessor employers and the local board of the new city is the successor employer.

(3) For the purposes of this Act, the changeover date is the earliest date on which employees are transferred to the local board of the new city.

26In order to fall within section 5(1) of the PSLRTA, two criteria must be satisfied. Firstly there must be the establishment of a local board of the City. This has happened. Secondly, there must be a transfer of employees from at least one of the old local boards to the new local board (...one or more...). This has happened.

27It is also the case that the events described in sections 3(a) to (d) and 4(2) have occurred. For these reasons, the PSLRTA applies with respect to these parties without addressing the question of which discrete transactions may determine the outcome of the process of negotiation and if necessary, litigation contemplated by the statute.

28The number and description of bargaining units and the identity of bargaining agents with respect to both respondents, remains subject to final agreement and/or determination pursuant to sections 20 to 23 of the PSLRTA. It is the fact that these fundamental questions remain outstanding and unresolved which lies behind the applicant's concerns about the respondents' conduct at this point in time.

29There is little doubt that the Board would have jurisdiction over the applicant's intended application, should it be brought. In these circumstances, the Board would have the authority to examine the process currently underway between the parties in which the issues of bargaining units, their descriptions and the identity of bargaining agents are being determined. As part of this review, the Board would have the jurisdiction to consider whether the parties generally have acted in accordance with the act and also whether the process contemplated by the PSLRTA has been compromised by the conduct of any party.

30As this application and potentially the applicant's intended application arise only as a result of this process, I find that the Board has jurisdiction in the circumstances of this application to consider whether it should exercise its interim relief powers. In other words, the question of whether the Board has jurisdiction in this application does not necessarily turn on whether the respondents have in fact, breached the PSLRTA. Rather, the Board has jurisdiction if the issues raised by the applicant flow from the process which may result in the applicant's intended application.

Conduct of the Responding Parties

31Extensive argument was made at the consultation concerning the characterization of the transactions which form the factual basis of this application. The central issue joined by the parties is whether there is one ongoing fluid movement of work and employees as the applicant and intervenors suggest, or alternatively as the respondents argue, are there three very discrete and separate transactions according to the categories established by the PSLRTA.

32In view of the urgency of this matter I will provide my conclusions only on this point and not set out my reasoning at this juncture. I find that the responding parties' submissions on this issue are correct and that for the purposes of the PSLRTA, there have been three discrete transactions. The responding parties' theory of what has happened to this point is consistent with the scheme of the PSLRTA. I find that on May 11, 1998, there was a transfer of work from the City to the TPA. In the absence of a determination that there has been a sale of a business or that the responding parties are related employers, I find that the recruitment of the applicant's members to employment with the TPA is just that - recruitment - and not a transfer of employees.

33For these reasons, I find that the conduct of the responding parties does not appear in any way to be inconsistent with the PSLRTA.

Filing of this Application

34Rule 108b of the Board's Interim Rules with respect to the PSLRTA state:

108b. These rules apply to applications under the Public Sector Labour Relations Transition Act, 1997. They amend the Board's Rules of Procedure, which continue to apply, except to the extent that they conflict with these interim rules.

35Rule 87 of the Board's Rules dealing with an application for interim relief requires the applicant to file at the time of the application for interim relief a copy of the application that the applicant intends to file and to state when it intends to file it.

36I find that Rule 87 applies in this case and that the applicant has not complied with that Rule. I also find however that the Board should in these circumstances grant the applicant relief against strict compliance with Rule 87.

37My reasons for granting this relief include the following:

(i) this is the first application for interim relief under the PSLRTA and this issue has not been expressly determined before;

(ii) there is arguably some ambiguity about the requirement to file the intended application having regard to the interaction of the Board's Rules and Interim Rules regarding the PSLRTA;

(iii) despite the applicant's failure to file a copy of an intended application, the respondents appear to understand very clearly the issues that need to be addressed in this application for interim relief;

(iv) given the nature of the dispute between the parties, there is a labour relations purpose to be served in adjudicating the issues raised at this point having heard argument.

IV

What is left to decide?

38Despite the fact that I have decided that the responding parties appear to have acted in accordance with the PSLRTA, I am not prepared to say at this point that this finding means that the Board is precluded from granting the relief sought by the applicant. The role of the Board under the PSLRTA may arguably include the responsibility to ensure the viability of the process of negotiation and litigation contemplated by sections 20 to 23 of the legislation. If this matter is not settled by agreement and the consultation is reconvened, the parties should be prepared to address this last point. The parties should also be prepared to deal with the issues remaining concerning prejudice, harm and convenience.