[1999] OLRB REP. SEPTEMBER/OCTOBER 809
1532-99-PS The Corporation of the City of Kingston, Applicant v. Canadian Union of Public Employees, Local 109, Responding Party
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: Alan Whyte, Carol Quirt and Bill Bishop for the applicant; Peggy Smith, David Cornwall and John Rogers for Canadian Union of Public Employees, Local 109; Glenn Barnes for the Association of Pittsburgh Township Employees and on his own behalf; Stan Gab' and Marie-Rose Ernst on their own behalf.
DECISION OF THE BOARD; September 8, 1999
- The name of the responding parties is amended to "Canadian Union of Public Employees, Local 109" as the parties agreed that it is the only bargaining agent involved in this proceeding. At the consultation in this matter convened before me on September 7, 1999, I delivered the following oral ruling:
Oral Ruling
This is an application under section 27 of the Public Sector Labour Relations Transition Act, 1997, S.O. 1997, c. 21 (the "Act") to determine whether the employees of the applicant who were not represented by a bargaining agent and were not covered by a collective agreement prior to the changeover date and who as a result of Board orders under sections 22 and 23 of the Act, were included in the bargaining unit found by the Board to be appropriate, have the right to strike in connection with the bargaining for the first collective agreement under the Act between the applicant and the responding party.
I am satisfied that the issue raised by the applicant is properly before me under section 27 of the Act as there is a dispute between the applicant (employer) and the responding party (bargaining agent) that arises from the application of section 24(4) of the Act to the circumstances existing at the present time. Section 27 of the Act states:
"If a dispute arises about the application of section 24, 25 or 26, the employer or the bargaining agent may apply to the Board for an order resolving the dispute."
Indeed, the responding party did not take issue with the Board's jurisdiction to determine the issue and agreed that the issue was of such importance to the parties and to the employees affected that the Board should resolve the issue.
At the commencement of the consultation three individuals appeared before me to seek status to intervene, Glenn Barnes, Marie-Rose Ernst and Stan Galt. Mr. Barnes appeared not only on his own behalf but also on behalf of the Association of Pittsburgh Township Employees. The parties and Mr. Barnes agreed that all of the positions held by the members of the Association Mr. Barnes was representing were in the bargaining unit represented by the responding party. I ruled that only the responding party had standing to represent employees in the bargaining unit in this proceeding and that the Association, through Mr. Barnes, did not have standing to intervene. Mr. Barnes, Ms. Ernst and Mr. Galt then sought standing to intervene as individual employees affected by the determination. During the course of their submissions on the issue of standing, I asked why they were entitled to participate as parties when section 27 of the Act made it clear that only the employer and the bargaining agent had standing to make an application under that section of the Act. Individual employees did not have the right to bring an application under section 27 of the Act. Mr. Barnes submitted that his interests in the proceeding were different than the interests of the employer and the bargaining agent and submitted that he should be entitled to make his argument about the scope of the right to strike.
After hearing their submissions and the submissions of counsel for the applicant, I ruled that the individuals did not have standing to intervene as parties in this proceeding as section 27 was quite clear in identifying who could make an application to the Board under that section. I was also satisfied that section 27 was intended to allow the Board to deal with disputes that arose between the employer and the bargaining agent with respect to the application of section 24, 25 or 26 of the Act. Clearly, those two parties could resolve any dispute they had about the application of those sections of the Act without proceeding before the Board and their private resolution would be binding on the affected employees. I was satisfied that a Board proceeding to determine an issue under section 27 of the Act did not confer any greater rights on employees. Thus, their motion to intervene as parties was dismissed.
As a result of the Board's orders under section 22 and 23 of the Act in May and October 1998 (Board File No. 4301-97-PS) and the parties' agreement of November 30, 1998, a number of positions (and employees) that had not been represented by a trade union or covered by a collective agreement came within the comprehensive "all employee" bargaining unit now represented by Local 109 of the Canadian Union of Public Employees ("Local 109"). (I note that the parties before me agreed that Local 109 is the bargaining agent of the employees in the "all employee" bargaining unit. The Board in Board File No. 4301-97-PS has not yet made that particular order appointing Local 109 under section 23 of the Act.) As a result, those previously unrepresented employees were part of a bargaining unit and therefore became represented for purposes of collective bargaining by Local 109 by reason of section 17 of the Act, which provides:
"If, under this Act, a trade union is made the bargaining agent of the employees in a bargaining unit, the trade union shall be deemed to have been certified or chosen as such for the purposes of the Fire Protection and Prevention Act, 1997, the Labour Relations Act, 1995, and the Police Services Act."
- Although those previously unrepresented employees were, after the Board's orders and the parties' agreement, represented by Local 109, their terms and conditions of employment continued under their contract of employment pursuant to section 24(4) of the Act up to the time that a collective agreement covering the bargaining unit in which they are is made, as notice to bargain had been given. Section 24(4) of the Act provides:
"If no collective agreement is in effect with respect to a member of the bargaining unit immediately before the agreement or order comes into effect, and no collective agreement was in effect or deemed to be in effect at any time after the changeover date, the terms and conditions of the employee's employment are the terms and conditions of his or contract of employment as it may be amended from time to time until a collective agreement applicable to all employees in the bargaining unit is adopted under section 29 or imposed under section 30 or made following the giving of notice to bargain under this Act or another Act."
In addition to having their terms and conditions of employment continue until the applicant and Local 109 enter into a collective agreement, those previously unrepresented employees also have an additional entitlement to seniority rights and access to the grievance procedure by reason of sections 25(3) and 26(3) of the Act. The relevant portions of sections 25(3) and 26(3) state that "the seniority provisions contained in that collective agreement apply to all employees in the bargaining unit" [section 25(3)] and "the grievance provisions contained in that collective agreement apply to all employees in the bargaining unit" [section 26(3)].
Counsel for the applicant submits that the terms and conditions of employment of those employees under their individual contracts of employment do not include the right to strike. Counsel argued those employees are subject to the Local 109 collective agreement with respect to seniority and grievance procedure only and that nothing else in the collective agreement applies to them. Similarly, counsel argued that the Labour Relations Act, 1995, S.O., 1995, c. 1 (the "Labour Relations Act") did not apply to them because section 24(4) of the Act established that their terms and conditions of employment were governed by their contracts of employment and not by the Labour Relations Act, and further that section 39(1) of the Act established the primacy of the Act over the Labour Relations Act. Counsel submitted that the terms and conditions of employment (which did not include the right to strike) were protected by section 24 of the Act and if they conflicted with the rights that employees had under the Labour Relations Act, the terms and conditions of employment under the Act prevailed.
Counsel also submitted that section 19 of the Act did not confer any rights on the unrepresented employees as they would not be subject to collective bargaining until after a first collective agreement was made. Section 19(1) states:
"No employee who is a member of a bargaining unit established under this Act shall strike against a successor employer unless notice to bargain is given under this or another Act after the changeover date. An employee's right, if any, to strike after that date is determined under the Act that otherwise governs collective bargaining for him or her."
The phrase "An employee's right, if any, to strike after that date" in section 19(1), counsel argued, suggests that in addition to the employees subject to the statutory prohibition against engaging in a strike (employees subject to the Hospital Labour Disputes Arbitration Act, Fire Protection and Prevention Act, 1997, and Police Services Act), employees who had never been subject to a collective agreement and therefore did not have a right to strike also came within that "if any" category in section 19(1).
The Act establishes a process of transition for employees who were not represented by a trade union and come within a bargaining unit as a result of a Board order under the Act or the agreement of the employer and bargaining agent under the Act. It is clear to me that once those unrepresented employees are included in a bargaining unit, they are represented by the bargaining agent who was appointed by the Board to represent that bargaining unit. Contrary to the argument of the counsel for the applicant, persons who are employees within the meaning of the Labour Relations Act have the rights and are subject to the obligations under that act whether they are or are not represented by a trade union. Indeed, the Labour Relations Act makes it clear that employees have the right to join a trade union and that right is explicitly protected by sections 72 and 76 of the Labour Relations Act. During argument, counsel for the applicant did not seriously dispute that the unrepresented employees had the right to join Local 109 without fear of reprisal from his client. He did submit later that there was a line between certain rights under the Labour Relations Act and the right to strike under the Labour Relations Act and that the right to strike flowed from having been represented by a trade union before the commencement of the strike.
Counsel also submitted, in response to a question in the course of argument, that the previously unrepresented employees would not have the right to participate in a strike vote or ratification vote because they did not enjoy the rights of employees under the Labour Relations Act.
It is clear to me that once the unrepresented employees come within the bargaining unit, their right to proper representation by the bargaining agent (section 74) and their right to participate in a strike vote or ratification vote (section 79(8)) are governed by the Labour Relations Act. The scheme of the Act is designed to minimize to the extent possible the conflicts that arise from the substantial restructuring of bargaining units that take place under the Act. One of the purposes of the Act is "to facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees following restructuring in the broader public sector and in other specified circumstances" (see paragraph 3 of section 1 of the Act.) In my view, to interpret the Act so that some employees in the bargaining unit are entitled to participate in a strike while other employees in that same bargaining unit are not entitled to participate would not facilitate collective bargaining; rather it would undermine it.
Section 19(1) of the Act is perhaps more significant in resolving this issue. It is clear (and indeed no one disputes) that the previously unrepresented employees are, in fact, employees within the meaning of the Labour Relations Act. An employee's right to strike is founded on a reading of sections 5, 72, 76 and 79 of the Labour Relations Act. The Labour Relations Act prohibits a trade union from calling or authorizing a strike unless the conditions set out in section 79 are satisfied. Once those conditions are satisfied, it is lawful for the union to call or authorize a strike and for employees to participate in a strike. A legal strike is a lawful activity of a trade union. Thus, employees have the right to strike under the Labour Relations Act when that strike is a lawful activity of the trade union. As the previously unrepresented employees are in a bargaining unit and are represented by a bargaining agent that has a relationship under the Labour Relations Act with the applicant, it is clear to me that collective bargaining for those employees, although commenced under the Act, is otherwise governed by the Labour Relations Act. As such, their "right, if any, to strike" is determined pursuant to section 19(1) of the Act by having regard to the Labour Relations Act.
As is clear from my analysis of the Labour Relations Act, employees under that statute who come within a bargaining unit represented by a trade union that has satisfied the conditions precedent for calling or authorizing a lawful strike, do have the right to engage in a strike. As there is no dispute between the parties that Local 109 has gone through all the steps necessary to call or authorize a lawful strike, I am satisfied that the previously unrepresented employees do have the right to participate in a lawful strike under the Labour Relations Act and have all of the other rights enjoyed by employees under that Act.
Therefore, pursuant to section 27 of the Act, I hereby order by way of a declaration that all of the employees of the applicant in the bargaining unit represented by Local 109, including those employees who were not represented by a trade union prior to January 1, 1998, have the right to participate in a lawful strike called by Local 109.
The responding party is directed to post this decision in conspicuous locations where it is likely to come to the attention of all the employees in the bargaining unit represented by Local 109.
In view of the disposition of this application, it was not necessary for me to deal with the applications for interim relief filed by both the applicant and responding party.